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POLITICAL 



AND 



CONSTITUTIONAL LAW 



OP THE 



UNITED STATES OF AMERICA 



BY 

WILLIAM O. BATEMAN 

COUNSELLOR- AT-L AW . 



'ETERNAL VIGILANCE IS THE PRICE OF LIBERTY.' 

Andrew Jackson. 

'■The Constitution, in all its provisions, looks to an indestructible Union 
composed of indestructible States.' — Opinion of the Supreme Court of the 
United States in Texas v. White, 7 Wall. 721. 




ST. LOUIS 

G. I. JONES AND COMPANY 

1876 



*' 






Copyright, 1876 

by 

G. I. Jones and Company 



ST. LOUIS 

PRESS OF G. I. JONES AND COMPANY 



s 



TO 

EVERT AMERICAN CITIZEN 

WHO PREFERS THE GLORY OP HIS COUNTRY, 

A CONSTITUTIONAL GOVERNMENT 

AND 

AN INDESTRUCTIBLE UNION OF INDESTRUCTIBLE STATES,- 

TO 

THE SYSTEM OF POLITICAL USURPATION 

AND 

OFFICIAL CORRUPTION 

NOW FORESHADOWING THE COMING 

EMPIRE, 

THIS WORK IS 

DEDICATED. 



PEEFACE 



The design of this work is to point out the way to a just appre- 
ciation of the American political system. 

The principles fundamental to political self-government, should 
doubtless be clearly understood by every voter or elector. For 
his status, in this country, is no less than that of one of a body of 
absolute sovereigns. 1 The three fundamentally different and mu- 
tually opposing theories of our political system, — one or another of 
which every voter must necessarily sanction, and consequently, 
one or another of which must furnish the key to every administra- 
tion of government, state and federal, — are therefore severally and 
distinctly presented, so that every voter may judge for himself, as 
he ought to do, which of these theories should receive his assent 
and support. 

Attention is also directed to the different foundations of govern- 
ment, to the rise and development of the system peculiar to Amer- 
ica, to the sovereign legislation by the People themselves from the 
dawn of the Revolution to the xvth Amendment, and to the views 
and doctrines of the original framers of our Constitutions ; ever so 
little reflection upon which will enable any voter to form his own 
independent opinion, regardless of partisan strifes, and to cast his 
vote with a clear understanding of what it involves. 

The principle of the xivth and xvth Amendments to the nation- 
al Constitution,— the principle of partisan changes of the funda- 
mental organic law, affecting the paramount sovereignty of the 
People, — is reviewed in the light of principles deemed sacred by the 
fathers of our republic, and the conclusion unavoidably reached, 
that one more step, if sanctioned by the People, will wholly divest 

1 On the responsibility resting with electors or voters, see \ 97 of this work. 



VI PREFACE. 

them of their sovereign right of suffrage and election — the sceptre 
of their sovereignty and their proudest inheritance — and clothe 
their common government with an imperial and despotic power. 
That step is now foreshadowed as a probable xvith or xvnth 
Amendment, in substance this : — The right of citizens of the 
United States, to vote, shall be protected by the United States, and 
by congressional legislation prescribing the right to vote and the 
qualifications requisite to the exercise thereof. The proposition 
that the United States are a Nation may be the form of the 
new Amendment. For the power of congress to regulate all mat- 
ters which may in any way affect the Nation, has been already 
■deduced from this proposition by some of our political writers. In 
this connection, it should be remembered, that Amendments to 
the Constitution of the United States, disposing of the para- 
mount SOVEREIGNTY OF THE PEOPLE PURSUANT TO THE CA- 
PRICE of the dominant party in congress, are no longer sub- 
mitted to the People themselves, for adoption or rejection, but 
only to the State legislatures ! If the Constitution of the United 
■States is thus at the mercy of any administration that may come 
into power under it, there is plainly an end of Constitutional Gov- 
ernment in America. The subject bespeaks its own importance; 
an importance outweighing all other political considerations. 

While the issues of the late war are now universally regarded as 
forever decided and set at rest, the People are yet to determine 
and decide, by their votes at the coming elections, whether they 
will or will not continue to exist as they have always existed, — 
that is, as self-governing States, each State being a separate body 
of electors or voters, and each body of electors or voters making 
and controlling their own election law by their State Constitution ; 
— or whether the sceptre of their paramount sovereignty, their 
power to govern by holding the right of suffrage and election at 
their own sovereign will, shall pass from them to a congress which 
must thereby become an irresponsible and despotic power. 1 

This question is ever before the People, whether they, or their 
Government, shall be Sovereign. For political government is of 

1 See \ 96, pp. 163-164. See also \\ 171 to 181. 



PREFACE. VII 

such a nature as to keep this question forever alive so long as the 
decision of the People is in their own favor. This very same ques- 
tion was the first to be decided in 1776. It is now the first to be 
decided in 1876. 

Wm. O. Bateman. 
St. Louis, 1876. 









OKDEK AND DIVISION OF SUBJECTS. 

(For Index, see End of Volume.) 



Sec. 
INTRODUCTORY 1 

(la) POSITIVE RIGHTS - - - - 4 

(1 6) PUBLIC - 5 

(1 c) Internal or Absolute — viz. ------ 6 

(1 d) Political Existence — wherein ----- 7 

(1 e) Of the General Nature of a Political State— 7 

The Country and Title thereto ------ 8 

The People 9 

The Government -------- 10 

Analysis of the Foundations of Government 11 

Government based on Common Consent - - - 11 

Sovereignty of People ceded to their Rulers 12 

Sovereignty of People wholly reserved to themselves 13 

Sovereignty of People partly ceded and partly reserved 14 

Individual Liberty ------ 14 

State Sovereignty -------15 

States United ------- 16 

Inalienable Rights -.---- 16-17 

Common Consent as implied ----- 17 

Definitions of a nation or state ----- 18 

Blackstone's idea ------- 18 

General Descriptions of a State - - - - 18 a, 

"What is meant in this coimtry by a State - 19 

What the United States 19 

Distinction between Nation and State - - - 20 

Duty of political self-preservation - - - - 21 

(2 e) Of the Political State of the Anglo-American Colonies 22 

Their rapid rise __-___-- 22 
Their political dependence - - - - - -23 

Different kinds of Colonial Governments - 24 

Royal 25 

Proprietary --------- 26 

Chartered 27 

Internal divisions of the Colonies • 28 



ORDER AND DIVISION OF SUBJECTS. 

Their relations to each other and to the parent State 29 

Their common allegiance ------- 30 

Jealous of their Liberties ----.,-31 

The issue between them and the parent State - - - 32 

The Stamp Act - 33 

Opposition thereto ---..-. 34 

The Congress of 1765 --.----- 35 

Omnipotence of Parliament asserted in England •* 36 

The Congress of 1774 37 

(3 e) Of the Political Measures of the Kevolution - 38 
and herein 
(1 /) Of the Resumption of the Political Sovereignty by the 

People 38 

Eight of Eevolution 38 

The Sovereignty resumable in three ways 39 

In what way and by whom it was resumed - - - 40 

Action of the people of Massachusetts 41 

Action of the people of New Jersey - - - - 42 

Action of the people of the other States - - - 43 

(2 /) Of the General Congress of the Revolution - 45 

Composition and character of this Congress 45 

Its powers --------- 46 

Its early measures ----. ----47 

Declaration of Independence ------ 48 

Operative clause of this act ------ 49 

Confederation of the States ------ 50 

The Articles of Confederation 50 

Treaty of Peace -------- 51 

(3 /) Of the Principles Established by the Revolution - 52 

Political Principles ------- 52 

The Right of Revolution 52 

State Sovereignty - - 54 

Allegiance ----------55 

The original Union of the States - - - - - 56 

Defects of the Confederation ------ 57 

Common Law Principles ------ 59 

General nature of the Common Law ----- 59 

Its confirmation partial ------ 60 

By and for whom confirmed 61 

Its peculiar genius and excellence - 62 

(2 d) Political Sovereignty — comprehending 69 

(1 e a) The Legislative Power — which is of three kinds, viz. 

(If a) The Legislative Power of the People 

(The Original Principle of Sovereignty) - 69 

and herein ------- -71 

{1 g a) Of the Establishment of the State Constitutions - 73 

General nature of these instruments 73 



ORDER AND DIVISION OF SUBJECTS. XI 

Their foundations ------- 74 

General form of State Constitution 75 
(2 g a) Of the establishment of the Constitution of the 
United States — and herein 

(1 h) Of the General Convention of 1787 

Action resulting in the call therefor - 76 
Action of the Annapolis Convention 77 

Action of Congress ------- 78 

Responses of the States ------ 79 

Two parties in the Convention - 80 

Final action of the Convention ----- 81 

The Constitution as submitted - 81 

Resolution and Letter of the Convention - 83 

Action of Congress thereon ----- 84 

(2 h) Of the Ratifying Conventions of the States and their 

Ordinances of Ratification ----- 85 

Delaware Ordinance ------ 85 a 

Pennsylvania Ordinance - - - - - - 85 & 

New Jersey Ordinance ------ 85 c 

Georgia Ordinance - - - - - - 85 c? 

Connecticut Ordinance ------ 85 e 

Massachusetts Ordinance - - - - - 85 f 

Maryland Ordinance ------ 85 g 

South Carolina Ordinance - - - - - - 85 ^ 

New Hampshire Ordinance - - - - 85 i 

Virginia Ordinance - - - - - - - 85 & 

New York Ordinance ------ 85 I 

North Carolina Ordinance - - - - - -85 m 

Rhode Island Ordinance ------ 85 n 

Resolution of Congress - - - - - -85o 

Inauguration of U. S. Government - - - 86 

(3 h) Of the Power to Amend and the several Amend- 
ments - - - - - - - - -86 a 

Mode of Establishing Original Reviewed - - 86 a 
Mode of Amendment -------87 

Impolicy of Amendments ----- 88 

The Several Amendments now Established - - 89 
(3 g a) Of the Political System Established by the Organic 

Law — and herein ------- 90 

(1 h a) Of the States as Bodies Politic or 'The People' 

as Electors 90 

Who compose the Political States - - - - 91 

Who 'The People' are 92 

'The People' Sovereign 93 

Importance of Regulations concerning Electors 95 

Variety of such Regulations - 96 

Office of Electors - 97 



Xll ORDER AND DIVISION OF SUBJECTS. 

Suffrage, necessarily Limited - - 91,98' 

Extension of, the Ruin of Republics 99 

Possible Remedy for Evils 100 

(2 h a) Of the Character of the Union - 101 

The Primary Question ------ 101 

The Imperial or 'National' Theory - 102 

Method and Object of - - - - - - 103 

Parties to the Constitution ----- 104 

Competency of, how determined - 105 

Advantages of this Theory ----- 106 

An easy method of Usurpation - - - - 107 

Preamble to Constitution ------ 108 

How it originally stood and why changed - 109 

The Federal Theory Ill 

Principle that governed the Convention - - 112. 

Design of the Convention ----- US 

Madison's View - - - - - - - 114 

Of Foundation of Federal Government - - 114 

Sources of Federal powers - - - - 115 

Operation of Federal powers - - - - 116 

Extent of Federal powers - 116 

Hamilton's View ------- 118 

U. S. a Confederacy - 119 

Advantages of a Confederacy - 121 

Legislation for States condemned - - - 122 

Coercion of States impracticable - - - - 123 

Encroachments by States ----- 124 

Bounds of State and Federal authority - - 125 

Alienation of State Sovereignty in three cases only 126 

Rule of Constitutional Interpretation - - 127 

Parties to Constitution ------ 128 

Jay's View 130 

Chief Justice Marshall's position - - (§204)131 

"Webster's doctrine ------ 133 

State Sovereignty ------- 134 

As Internal, inalienable ----- 135 

A check to tyranny of majorities - - - - 136 

May the Union be dissolved - . - - - 137 

Right to Resume the Powers of Government - - 138 

Principles of the Union ------ 141 

Construction of Federal powers - - - - 142 

Supremacy of Federal laws - 143 

Extent of Federal powers ----- 145 

Final Judgment on Political issues - 146 

Political Parties -------- 151 

Origin of- - - - -- - - 152 

Necessitv of-------- 153 



ORDER AND DIVISION OF SUBJECTS. Xlll 

(3 h a) Of Citizenship - - - - - - 155 

What is meant by ' citizen '----- 155 

Three kinds of ' states '------ 156 

Native Citizens -------- 157 

Naturalized Aliens ------- 158 

Power of Naturalization ------ 159 

Character and extent of 161 

Legislation under ------- 162 

Naturalization by operation of law - 166 

Duties and Rights of Citizens ----- 167 

In General 167 

Citizens of the U. S. 168 

Origin of U. S. Citizenship ----- 169 

'Privileges and Immunities' of 170 

The xvth Amendment ----- 171 

Allegiance and Protection - 180 

Twofold character of ----- 181 

(Two Governments for each State) - - - 181 

Obligation of human laws ----- 182 

Expatriation -------- 183 

{2 fa) The Legislative Power of the State Legislatures - 186 

(1 g b) Constitution of these Bodies ----- 186 

Policy of dividing them ------ 186 

House of Representatives ------ 187 

Senate 188 

Powers of each House, Privileges of Members, etc. - 189 

(2 g b) Nature and Extent of their Powers - - - 190 

General, not enumerated 190 

Certain Powers Prohibited - - - - - 191 

Contrasted with powers of the British Parliament - 192 

The vice of our system ------ 193 

,(3 / a) The Legislative Power of Congress - 194 

(1 g c) Constitution of Congress ----- 184 

Division into two Branches ------ 194 

House of Representatives ------ 195 

Apportionment of Representatives - - - - 196 

Senate 197 

States Represented 198 

Qualifications and appointment of Senators - - 198 

Powers of each House — Privileges, etc. - - - - 200 

(2 g c) Nature and Extent of the Powers of Congress - 201 

Its Powers Enumerated ------- 201 

Object of their Enumeration ----- 202 

Limitations of its Powers ------ 203 

The Taxing Power 205 

Purpose of this Power ------ 206 

Rules controlling it ------ 207 



XIV ORDER AND DIVISION OF SUBJECTS. 

Kelation of Federal and State Taxation - 211 

The Power to Kegulate Commerce - 215 

As to Bankrupt Laws ------- 225 

As to Post-offices and Post-roads - 227 

As to Patents and Copyright ----- 228 

As to Offences on the High Seas - - - - 229 

War Powersof Congress ------ 231 

As to Army -------- 235 

Navy - 237 

Militia - 239 

The State's Defence 241 

Over Places ceded to IT. S. - - - - 244 

Concerning Treason ------ 247 

To admit new States ----- 248 

As to Territory and other Property of U. S. - 249 

As to Guaranty of Kepublican Government - 250 

(2 e a) The Judicial Power 253 

(lfb) The Judicial Power of the People - - - 253 

(2/6) The Judicial Power of State Courts - - - - 255 

(1 g d) General Nature and Extent of r - - - 255 

(2 g\d) The several kinds of State Courts - - - - 261 

(3/6) The Judicial Power of Federal Courts - - - 266 

(1 g e) Its Extent - 266 

(2 g e) The several U. S. Courts 272 

Supreme Court -------- 273 

Inferior Courts 280 

District Courts - 280 

IT. S. Circuit Courts 281 

(3ea) The Executive Power 283 

(1/c) State Governors ------- 283 

(2/c) President of the U. S. 286 

(1^/) Mode of Electing - 286 

(2#/) Qualifications for the Office 288 

(3^/) Power of 289 

As Commander-in-chief ------- 290 

of Army and Navy ------ 290 

of Militia --------- 291 

To grant reprieves and pardons - , - - 293 

Concerning Treaties ------- 294 

To appoint U. S. Officers 295 

To convene and adjourn Congress, etc. - - - - 296 

To Veto Bills - 297 

(3 d) Political Domain -' 300 

Domain of the States -------- 300 

Domain of the United States ------- 302 

CONCLUSION 303 



POLITICAL AND CONSTITUTIONAL LAW 

OF THE 

UNITED STATES 



INTRODUCTORY. 



In order to determine at what point of our inquiry we ^ j^e la- 
ought to commence, a preliminary observation of things tion of natur- 
presupposed may not be uncalled for. al to positive 

The political or fundamental law of a people, considered * aw * 
in relation to its original principles, is, as all will admit, a 
more or less perfect recognition and expression of the so- 
called natural law; a particular system of political ethics, 
which they have drawn from the original fountain of ethics, 
and thence ordained and established as the positive rule of 
their conduct in relation to each other. The principal dif- 
ference between the natural and the positive laws of human 
society, is seen in the different methods by which those 
laws are prescribed. Human nature is their common 
source. Both are prescribed by man to man : the first, by 
any and every individual as his opinion of natural right; 
the last, by the common authority, as the common sense 

OP THE COMMUNITY AT LARGE. 

The right of self-government is the right of one people 
no more than of another, and it follows of course that every 
system of positive law should be everywhere respected, 
and in fact received and considered, as the original idea of 
justice particularly defined and applied by the wisdom and 
experience of the people by and for whom ordained and 
established; in other words, as the common sense and 
moral philosophy of that particular people, expressed and 
proclaimed by them as the law of their political state. And 
this is the reason of that friendly and mutual respect 
which the laws, the governments and the courts of civilized 
nations show for each other. ' 



Z POLITICAL AND CONSTITUTIONAL LAW 

g2. Thene- If the principles of natural justice were every where well 
cessityofposi- understood, and men could be just to themselves, the insti- 
tution of political states and positive laws would be wholly 
unnecessary and unwarranted. But even if men were natu- 
rally inclined to be just, yet positive laws would be still 
indispensable, in order to quiet those doubts and disputes 
which must otherwise constantly arise concerning the 
duties enjoined and the rights conferred by natural law. 
For what is or is not conformable to that law, is a question 
upon which the minds of mankind are often er divided than 
agreed, and one that can only be settled by that legitimate 
expression of the common understanding and agreement 
of society which constitutes positive law, and which in fact 
is the only criterion or standard of right to which human 
government can justly permit an appeal. 
Positive law This positive, civil or municipal law, is therefore prop- 
defined. er \j defined to be, ' a rule of civil conduct, prescribed by 
the supreme power in a state, commanding what is right ? 
and prohibiting what is wrong.' 1 



\ 3. Its pri- Hence, to determine, define and prescribe the rights of 
ma ?^ Je ^ men ; and to prohibit, prevent or redress such wrongs as 
may be committed by them; these are the grand and pri- 
mary objects of every system of positive law. 2 



— rights and 
wrongs. 



$ 4. Rights (1 a) EIGHTS, as defined and prescribed by positive 
distinguished, laws, are denominated positive rights ; and these are pri- 
marily distinguished into public and private : public, as those 
of a body politic or political state; private, as those of 
private individuals or natural persons. 3 

I 5. Public (1 b) PUBLIC BIGHTS, namely, those of a people con- 
rights, sidered as a political community or state, are either such 
as grow out of the political relations of a people to their 
state, or such as arise with the political relations of their 

1 1 Bl. Com. 44. 

2 Id. 122. 

3 See Inst. 1, 1, 4 ; Dig. 1, 1, 2 ; Austin on Jurisprudence (Lond. 1869), 
p. 69-71. 






OF THE UNITED STATES. 3 

state to other states : their public rights being internal and 
absolute, and thus independent of treaty or compact with . 
other states ; or external and relative, and therefore in part 
determined by inter-state legislation. 

(1 c) PUBLIC ABSOLUTE EIGHTS, or those of a po- 2 6. Public 
litical community in relation to its members and subjects, a so u ^g^ts. 
are strictly analogous to those absolute rights of private 
individuals which political states are originally designed 
to secure and protect; and corresponding to the three great 
original rights of life, liberty, and property, are none 
other than the rights of political existence, political 
sovereignty and political domain. Of these we treat in 
the present book. 



(1 d) OF THE EIGHT OF POLITICAL EXISTENCE : AND HERE. 
LN, FIRST 

(1 e) OF THE GENERAL NATURE OF A POLITICAL STATE. 

The right of political existence, the right of a peo- * 7 p ii t i- 
ple to exist in the character and capacity of a sovereign C al existence, 
political state, is a right that can only be well understood, 
or properly explained, as it relates to the people or peo- 
ples of this country, by considering, first, the general na- 
ture of a political state ; secondly, the political state of the 
Anglo-American colonies ; and, thirdly, the political measures 
of the American Revolution. Of these then in their regular 
order. And, first — 

The general nature of a political state, I shall now 
consider, but with reference to those things only which are 
absolutely essential to its existence as such : namely, a 
country, a people, and a government. 

(1) A country is obtained, either as an original acquisi- a 8 Of the 
tion by discovery and settlement, or as a derivative acqui- country and 
sition by negotiation and purchase, or else by right of war title thereto. 



4 POLITICAL AND CONSTITUTIONAL LAW 

and conquest. 1 Thence the title descends from generation 
to generation, as the common inheritance of the people. 
It was chiefly by the first and second of these methods that 
our title to this country was originally acquired. 2 

According to the theory of feudal sovereignty, — a theory 
adopted by the European states, and generally conceded 
by the original discoverers of the country in favor of the 
governments by whom they were respectively commis- 
sioned, — the title to the portions within the jurisdictions of 
the British colonies, was considered as vested in the crown 
of Great Britain ; the title to the remaining portions, by 
force of the same principle, being vested in the crown of 
Spain, or the crown of France. 3 But the colonial struggle 
for independence, the American Kevolution, put an end to 
the theory of feudal sovereignty on this side of the Atlan- 
tic, at least, and established, instead, that of the sovereignty 
of the people of each state; and thence the prerogatives 
and regalities which before were conceded to the crown of 
Great Britain, became immediately and rightfully vested in 
them. 4 And, therefore, it is held by our courts of the 
highest resort, that the people of each state, in their own 
sovereign right, are invested with the absolute title to all 
the territory, and to all the navigable waters and the soils 

1 See Johnson v. Mcintosh, 5 Pet. Cond. Kep. 587. 

2 Id. 528 to 535. 

3 'All the lands we hold were originally granted by the crown. Our 
whole country has been granted; and the grants purport to convey the 
soil as well as the right of dominion to the grantee. Here [in these 
grants] the absolute ownership is recognized as being in the crown, and 
to be granted by the crown, as the source of all title ; and this extends 
as well to land covered by water as to dry land. * * * All grants 
of land, whether dry land or covered with water, are, for great public 
purposes, subject to the control of the sovereign power of the country.' 
Martin et at. v. Waddell, 16 Pet. 426. This is strictly in accordance with 
the principle of the British government, that all lands are holden of the 
king. In point of strict justice, however, the title of the king of Eng- 
land to this country, was but little better than that of the Pope of 
Rome, Alexander VI, who, as the successor of St. Peter and Vicegerent 
of God, granted the whole of this Western world to the crown of Cas- 
tile and Arragon. See note to Vattel, L. of N. lib. 1., \ 208. 

* Martin et al. v. Waddell, 16 Pet. 416. 



OP THE UNITED STATES. 

under them, within the jurisdiction of their state, for their 
own common use ; subject only to the rights or powers 
which each state has delegated by the federal constitution 
to the government of the United States. 1 The title to 
the territories acquired since the Revolution, originally 
vested in the United States j in trust, however, for such of 
the people of the several states as should settle therein, 
form new states, and, in the capacity of states, be admitted 
as co-equal members of the federal union. 2 

(2) A people, while possessing those qualities which are \ 9. Whence 
common to their race, will derive that character which a # P e °pl e <*e- 
chiefly distinguishes them from every other people, from . , . 
the nature and climate of their country. 3 In proportion ac t er . 
as the country is of wide extent, of a diversified nature 
and variable climate, there will also arise, between the peo- 
ple of different sections, widely different customs, manners 
and institutions. This will inevitably be the case of a 
people who inhabit a vast continent, the geography and 
natural productions of which are infinitely varied, and 
hence they will greatly differ from a people who inhabit an 
island, where the climate and natural productions may 

1 Id. 16 Pet. 410. 

2 Although the title to the soil under the tide waters of the bay [of 
San Francisco] was acquired by the United States by cession from Mex- 
ico, equally with the title to the upland, they held it only in trust for 
the future state, and when California was admitted into the Union upon 
equal terms with the other states, absolute property in, and dominion 
and sovereignty over, all soil under the tide waters within her limits, 
passed to the state, with the right to dispose of the title to any part of 
said soils, subject only to the paramount right of navigation over the 
waters, so far as such navigation might be required by the necessities of 
commerce with foreign nations or among the several states. Per. Mr. 
Justice Field, in Weber v. Harbor Commissioners, Sup. Ct. U. S. Cen- 
tral Law Journal, Vol. 1, No. 41, p. 513. 

3 This subject is treated in a masterly manner by the great French 
philosopher, M. Victor Cousin, in his History of Modern Philosophy, 
Vol. 1, pp. 161 to 173 (Appleton's Ed., Wight's translation), tit. < The 
Part of Geography in History.' Montesquieu, however, had previously 
made its consideration a distinguishing feature of his immortal work, 
1 The Spirit of Laws.' See also the ' Federalist,' No. 2. 



6 POLITICAL AND CONSTITUTIONAL LAW 

vary but little, and the rising or setting of the sun may be 
witnessed by all at the very same moment. 

"Not the shortest of the pithy chapters of The Spirit of 
Laws, is rendered in these words — 'If it be true that the 
temper of the mind, and the passions of the heart, are ex- 
tremely different in different climates, the laws ought to 
be relative both to the variety of those passions, and to 
the variety of those tempers/ 1 

The natural and inevitable effects of the laws of the 
physical world should certainly not be overlooked, either 
by those who frame, or by those who sanction and adopt, 
the political constitutions of a country. For a law that 
may prove beneficial to the people of one section, may 
prove disastrous to the people of another. And there- 
fore the laws, usages and customs, which have grown up 
with the people of a particular locality, should be allowed 
to remain in full force and effect concerning such matters 
as peculiarly relate to that people : such laws and customs 
having been approved by their wisdom and experience as 
conducive to their welfare and happiness j and the people 
of each section, as of each country, having a natural, in- 
herent and inalienable right to govern themselves and 
to make their own laws, in relation to matters peculiarly 
and immediately affecting themselves. 

Finally— 

1 10. Ofgov- (3) A government of some sort is also essential to the 
eminent. existence of a political state. It will, therefore, here be 
proper to analyze and consider the principal foundations 
of government, and the logically possible theories respect- 
ing the same. 

In every political society, the sovereignty (the supreme 
power, involving the right of final judgment and supreme 
command,) is either divided, or vested exclusively in the 
government or exclusively in the people. The fundamen- 
tal maxim of our constitutions being that all political power 
is inherent in the people, and that all just government is 

1 Montesquieu, S. of L. b. 14, c. 1. The remaining chapters of his 
14th book are devoted to the diversities in question. 



OF THE UNITED STATES. 7 

founded in their common will and consent, we shall here 
limit our analysis accordingly. 

The sovereignty, or power of final decision and supreme _ 1 11. Analy- 
command, being vested in the people, the law of the state sis of the Am- 
. ,, .„ „ ,, , . / ,;. n i erican system, 

is the common will of all ; and the public government, called 

indifferently democratic or republican, is based upon the 
two necessarily coexistent principles of which popular sov- 
ereignty is composed : viz, 

(a 1) Individual self-government, personal liberty; the 
right of a man to govern himself by his own judgment, in 
relation to things peculiarly concerning himself, and by his 
agreements with others and the laws of society, in relation 
to things of equal importance to all. Here all are necessa- 
rily equal in right ; no respect can be paid to mere power ; 
everything proceeds from individual liberty and moral re- 
sponsibility. The public government must consequently 
rest upon 

(a 2) Common Consent : which consent is either, 

(b 1) Presumed — implied from the constituted order of 
things: and here, whatever the government or form of 
government at any time existing, the assent of the people 
thereto is presumed from, as implied in, the fact of their 
submission to it; so that any kind of government, monar- 
chy, aristocracy or democracy, may rest in the common 
implied consent of the people. Or, this common consent is 

(b 2) Expressed — written, as in our political constitu- 
tions: Whereby, either, 

(c 1) The right of individual self-government is wholly 
ceded, aliened and subjected to the instituted government : 
a supreme power of final decision, as to what is right or 
what wrong, is, in all cases, vested in our rulers by a writ- 
ten organic law of which they are the final expounders. Or, 

(c 2) The right of self-government is wholly reserved : the 
final decision of all matters, as a natural and inalienable 
right, is retained by each and every individual, and by 
each and every political community or state. Or, 

(c 3) The right of self-government is partly ceded and 
partly reserved ; that is, distinguished into an internal right 



8 POLITICAL AND CONSTITUTIONAL LAW 

and an external right; reserved as internal, that is as a 
right to govern one's self as one pleases in relation to 
things peculiarly concerning one's self; ceded, or rather 
conceded, as an external right, that is as a right to control 
affairs in which all are equally interested. Thus, upon this 
ground, 

(d 1) Each member of society reserves the right of self- 
government respecting such actions and things as peculiarly 
concern himself, his own internal self-government, and the 
management of his own affairs ; but concedes the control 
of such matters as are of equal importance to all, to a 
common government resting in the common consent of 
all. 

(d 2) Each state or nation in like manner, reserves to 
itself the sovereign control of its own internal concerns ; 
but concedes to every other an equal voice in the direction 
of affairs which are common to all. Finally, 

(d 3) A union of nations or states, just as a political 
union of individuals, is possible as based on this principle; 
that is, as based on the delegation by each to a common 
government of all, of the direction and control of affairs 
which are of common and equal importance to all. 

2 12. Abso- There are, then, three theories of our American system. 

lutism. Im- Jjqi U9 endeavor to obtain a correct idea of each. 

pena ism. j^. can h ar( jiy De necessary to notice the primary dis- 

tinction between & presumed or implied consent of the peo- 
ple, and a written constitution in which their common consent 
is expressed. For public government, as founded in an im- 
plied consent of the people, is wholly unknown in this 
country; or, if not wholly unknown, exists only as a 
dream, only in the imagination of those political dreamers 
who would rebuild our system on the notion that all the 
powers of our federal government are derived from the 
will and consent of the ' Nation : ' a will and consent which 
are nowhere evidenced, except by the fact of the general 
submission of our people to that government; nowhere 
evidenced, except as the consent of the people of Europe 






OF THE UNITED STATES. 9 

is shown, that is, by their submission to governments 
founded solely in force, fraud and usurpation. 1 

But considering our system as founded wholly in our 
written constitutions of government, there still remain three 
possible theories, each of which should be well understood : 
the first of which is possible only on condition of suppos- 
ing that whatever the power of the people may be, it is 
wholly and absolutely surrendered or ceded the moment 
they ordain and establish their organic law. This deserves 
a particular examination. 

(1) THE RIGHT OF SELF-GOVERNMENT IS WHOLLY CEDED. 

Upon this ground, the right of each member of society 
to govern himself by his own judgment, in relation to his 
own affairs, his own peculiar interests, his religion, vo- 
cation and pursuits, is wholly surrendered to the voice of 
the majority; a sovereign authority, a final jurisdiction, to 
say what is right, or what wrong, is, in all cases (not any- 
thing being reserved as subject to his own final judgment) 
vested in the common government. This ground is necessa- 
rily assumed by all who teach that the action of the con- 
stituted government, whatever that action may be, is final 
and conclusive. The theory is, that the natural sover- 
eignty of man is merged in the government of the state; 
that, when once a people have formed themselves into a 
political body or state, all right is vested in the government 
of that body, which government is sovereign and supreme ; 
consequently, the people themselves are its subjects, and 
the rulers (those who are called to maintain the constitu- 
tion and administer the laws) are the state — the only po- 
litical organic unit which is not reducible to a mere abstrac- 
tion. Again: if they form a compact of union with other 
states, or ratify an organic law or constitution establishing 
such union, then, on the ground assumed, their sovereignty 
is lost, — is, together with that of each of the other states, 
forever vested and merged in their union. ~No state can 
then say what is right, or what wromg, or do anything con- 
trary to the organic law of the union as expounded by the 

1 As to the theory of the 'Nationals,' Imperialists or Absolutists, see 
\\ 102 to 109, post. 



10 POLITICAL AND CONSTITUTIONAL LAW 

government of the union. First, the liberty of the individ- 
ual; next, the sovereignty of the state, is ceded, aliened? 
abandoned. Every step towards union, from, the simplest 
association of individuals to the grandest spectacle of a 
union of nations and states, is a step in the direction of 
universal absolutism. Whether we are or are not, in this 
country, fast approaching to this species of government? 
demands the attention of every American. On the other 
extreme, — 

§ 13. An- (2) The right of self-government is wholly reserved, 
archy. as the natural, inherent and inalienable right of — 

Each Individual. Each individual, consequently, is bound 
by those laws, and by those laws only, to which he has 
willingly become a party, and to which he willingly re- 
mains a party. All laws, being founded in common con- 
sent, are purely in the nature of agreement and compact. 
And since the right of self-government is inalienable, a 
man is bound only by his assent to such laws as purport 
not to cede this right, but to regulate matters of common 
concern. Even his assent to these he may at any time 
withdraw and revoke ; not indeed so long as he continues 
a member of that society with which he acted in making 
these laws, except in accordance with provisions to which 
all have assented, but whenever he may choose to dissolve 
his connections with that society and attach himself to an- 
other. And so of 

Each State. What is said of each individual is true of 
the state : for this is nothing but a political union of in- 
dividuals, founded in compact. 1 As individuals, acting in 
virtue of our right of self-government, we form a compact 
of union, all with each, and each with all, and by it confer 
an authority upon such as may be chosen from among us 
to act in our name and behalf. This authority we may, of 
course, at any time revoke ; acting either each for himself \ 
or all for all ; for each \% a sovereign principal, and as such 
may resume the power he has delegated, either with, or 

1 Const. Mass., Preamble. 



OP THE UNITED STATES. 11 

without, the consent of the others. But in whatever form 
this authority is at any time actually vested, it is, for the 
time being, the supreme authority, the political sovereignty 
of the state ; whatever we do in pursuance of it, we do in 
virtue of our political sovereignty; whatever we do by 
way of resuming it, we do in right of our natural and in- 
alienable sovereignty j this latter, as the right of final judg- 
ment upon questions of right, being just what each and all 
have reserved. Acting, then, in our political capacity, 
that is, under the laws of our state, we are a political unit, 
A state j and as such, form a compact of union with other 
states — a confederacy : it matters not whether we say by 
law or by compact ; for all laws must be in the nature of 
compact, based on common consent ) and these laws must 
be such that the sovereignty of the state is not compro- 
mised by them. Now the state, just like the individual, is 
bound by those laws only to which it has willingly become 
a party, and to which it willingly remains a party. Its 
sovereignty, its right of final judgment in all cases, is re- 
served. And consequently, acting in its political capacity, 
and by virtue of its inherent political sovereignty, it may 
at any time dissolve its connection with the union, and so 
absolve itself from the operation of its laws, either with, 
or without, the consent of the others. On this ground, the 
right of secession, individual and state, is not to be ques- 
tioned. 

Let us advance to the true theory, that which in this 
country has been and still is very generally supported (with 
more or less consistency) by the conservative men of all 
parties, and which, though seemingly a compromise be- 
tween the two extremes, in reality rests upon an equally 
original and independent basis. 

(3) The right op self-government is not wholly ceded , 14 -peder- 
nor wholly reserved, but is rather defined as subject to alism. 
certain limitations agreeing with the natural and essential 
difference, or boundary line, between this right of self- 
government as, on the one hand, an internal and absolute 
right, and, on the other, an external and relative right. 



12 POLITICAL AND CONSTITUTIONAL LAW 

There is, doubtless, a natural and necessary boundary line 
between the particular jurisdiction of each individual, over 
matters peculiarly concerning himself, and the general 
jurisdiction of all the members of society, over matters in 
which all are equally interested. The same is true of 
political states; for these must also exist, at one and the 
same time, each in relation to its members, and all in rela- 
tion to each other. Hence — 

Individual q^ Each individual, respecting such actions as pecu- 
liarly relate to himself and do not affect his natural and 
necessary relations to others, is originally invested with 
the right of self-government, as a natural, inherent and in- 
alienable right: and to this extent, — which is indeed the full 
extent of his natural right of self-government, — he is sov- 
ereign, free, and responsible to no man or body of men. 
So when he becomes a member of political and civil society? 
this right is reserved and secured, so far as its exercise does 
not affect his political and civil relations to others. Both 
naturally and politically he is one of a society of equals ; and, 
therefore, as to matters in which all are equally concerned, 
he is entitled to an equal voice. For this reason, he is 
bound by those laws which do not cede or impair his abso- 
lute right of self-government, or his right to an equal voice 
in the common government of all, but relate to things in 
which all are equally concerned, and are based on common 
consent. His right to say what is right or what wrong, his 
right of final judgment, though equal to that of any other 
member of society, is co-extensive only with his right of 
self-government. He cannot, therefore, dissolve his con- 
nections with that society of which he is a member, by any 
mere act of his own volition, and without the common con- 
sent of all; as well can a man have a right to dissolve a 
solemn obligation to which he is a party, without the con- 
sent of those to whom he is bound. 

\ 15. State (2) What is said of the individual is applicable to the 

sovereignty, political state. So far as concerns the regulation of its 

own internal affairs, the conduct of persons in their rela- 



States united. 



OP THE UNITED STATES. 13 

tions with each other as members of the state, it is sovereign 
and supreme, free and independent. But a state or nation, 
in relation to states or nations, must yield to those laws 
which are founded in the common consent of nations. In 
the exercise of its own internal jurisdiction, its judgments 
are final and conclusive. But concerning matters of ex- 
ternal and common concern, its final decisions must be 
subject to review by others; and all must finally yield to 
the voice of common consent. International law does not 
admit of the absolute sovereignty of any nation or state, 
except in respect to the rightful control of its own inter- 
nal affairs. 

(3) On the principles announced, a union of nations or § 16. Gov- 
states, in their several capacities as such, is clearly pos- eminent ^ of 
sible. Any number of sovereign political bodies may unite 
themselves together with a view to their external and for- 
eign relations, each reserving the sovereign control of its 
own internal affairs. Suppose, then, a union of nations or 
states, providing by its organic law for a common govern- 
ment of all, with legislative, judicial and executive powers 
coextensive with the external sovereignty of all over things 
in which all are equally concerned, but reserving to each 
its internal sovereignty as to persons and things within 
its jurisdiction. Where, it may be asked, would the right 
of final judgment reside — in each member of the union, or 
in the government of the union ? This question can only 
be equitably settled by determining the boundary line be- 
tween the INTERNAL SOVEREIGNTY OF EACH and the EXTER- 
NAL sovereignty of all. The fixing of this line is of para- 
mount importance in establishing the organic law of the 
union : if it be not definitely fixed by the organic law itself, 
but suffered to remain uncertain, a conflict of judgments 
will inevitably arise, in which the union, as a union of na- 
tions or states, must ultimately perish. It cannot be sup- 
posed, however, that powers would be vested in the union 
or general government, unless with immediate reference 
to this boundary line. Hence this line would be deter- 
mined by the nature of the powers reserved by each mem- 



14 POLITICAL AND CONSTITUTIONAL LAW 

ber on the one hand, or vested in the union on the other. 
As nations or states united, the right of final judgment, in 
certain cases, would doubtless remain with each member 
of the union : for this right could not be wholly conceded 
to their general government, so long as a vestige of the 
internal sovereignty of each was preserved: so long, in 
fact, as the union remained a union of states or nations as 
such. 

If the union be not of nations or states, in their several 
political and sovereign capacities as such, but of the in- 
dividuals of which they are composed ; then the nations or 
states who have formed such union have thereby wholly 
ceased to exist, either as internally or as externally sover- 
eign : all are merged into a single nation or state, a political 
union of individuals as such ) and the scheme of a union of 
states is resolved into that of a single state. This should not 
be overlooked. The possibility of a union of nations or 
states as such, is the possibility of an organic law which 
shall clearly establish the boundary line between the in- 
ternal sovereignty of each and the external sovereignty of 
all, by means of an enumeration and specification of the pow- 
ers of the union. For if this line cannot be fixed by the 
organic law of the union, and thence be preserved, as the 
only criterion of the powers of the government of the union 
on the one hand, and of the powers of the governments of 
the states on the other, then the very principle of this final 
scheme is proved abortive. This will be evident to all who 
consider the principles on which the different theories pre- 
sented are assumed to be possible. 1 

1 Let us particularly examine the foundations of this sort of govern- 
ment. It rests upon the doctrine of natural, inherent and inalienable 
rights. This doctrine of inherent and inalienable rights, is the peculiar 
characteristic of our American constitutions. But for foreign jurists in 
general, and indeed for some of our own, it is simply terra incognita, by 
no means approachable from their point of view, or if so, obscured by 
the ruins of imperial Rome. Austin repudiates it wholly, and the jurists 
of the Continent are likewise unweaned from the fountains of the civil 
law. Even many of our own jurists and statesmen, all those of the Na- 
tional or imperial school, reject it in silent contempt. In fact it belongs 
to no system or creed but that of the American 'people,' and is found no- 



OP THE UNITED STATES. 15 

Finally, that common consent, upon which government is 2 17. Corn- 
founded, might logically seem to be possible as partly im- mon consent 

where as a positively recognized basis of political government, except in plied, 
our American constitutions. Here, in this country, however, it erects a 
positively recognized boundary line between the powers confided to gov- 
ernment, and the rights reserved to ' the people ; ' between the rights 
of each member of society, and the rights of society considered as a 
whole ; between the rights of each state, and the rights of the United 
States. Which of our rights, then, it is asked, is inherent and inalienable ? 
Our natural liberty or right of self-government, — the right of a man to 
govern himself as he pleases, in relation to things peculiarly and imme- 
diately concerning himself, and to an equal voice with others, where 
others with him are equally concerned, — is clearly a natural, inherent 
and inalienable right. This, we say, is an inalienable right. For a man 
is not so far his own master, that he can alien his nature, or the ties of 
duty and right which are essential to the rational enjoyment of his na- 
ture. If then he consent to cede the government of himself to another* 
in other words, to become a slave, his consent or agreement is abso- 
lutely void. Such an agreement, whatever the consideration or induce- 
ment, can impose no rational or moral obligation, can enjoin no duty and 
confer no right. The moral responsibility of self-government can never 
be shifted from one to another. As well may a man transfer his per- 
sonal being — his reason, to perceive and know ; his understanding, to 
judge, and his will to do, what is right or what wrong. It is therefore 
not to be denied, that men have rights (such, among others, as the right 
to worship God according to conscience,) in the exercise of which, each 
is the final judge of what he may do. It is equally apparent, that in 
matters of common and equal importance to all, each is bound by the 
common voice of all, that is, by the common consent or agreement of all. 
Now how may public government be actually founded in this common 
consent ? As the basis of all, there must be an agreement, compact or 
covenant, between the individuals composing the state, by which they 
confer legislative, judicial and executive powers upon persons chosen by 
them and in accordance with that agreement. And who are to judge in 
the last resort, of the obligation of this social compact, — of the duties and 
powers of the government, on the one hand, and of the parties to the 
compact on the other ? If in the last resort, the government itself is the 
judge of these matters, its power is virtually alsolute ; for, in this case, 
it has all the powers it may judge to belong to itself. But its powers are 
necessarily limited by the will of the parties to the compact in which 
it is founded. It cannot therefore judge, in the last resort, of the extent 
of its powers, or of the rights of those parties. Those parties, then, who 
themselves are the authors of the fundamental law are to judge, in the 
last resort, of the powers conferred, and of the powers reserved. I say 
in the last resort ; for always, in the first instance, the agent must act 
upon his own understanding of the authority delegated to him. Sup- 



16 POLITICAL AND CONSTITUTIONAL LAW 

plied and partly expressed. But here we have only to con- 
sider, that if it be not wholly expressed, but left to be partly 

pose, then, that in the construction of the organic compact, a difference 
arises between the parties ; by what criterion should judgment be given ? 
The relative rights of persons are naturally doubtful and imperfect, ex- 
cept so far as determined by positive common consent. Their abso- 
lute rights, however, are naturally perfect, being inherent, inalienable, 
beyond the power of the human will, and therefore of higher authority 
than any merely human legislation. These, therefore, must be the cri- 
teria of judgment in cases of doubt. For nothing can be valid as 
against them. The right of individual self-government, for instance, the 
foundation of all government, cannot be affected by human legislation. 
This right, as susceptible of definition, is the right of a man to govern 
himself in things alone concerning himself, by what his own reason pre- 
scribes as reasonable; and in matters where others with himself are 
equally involved, by his agreements with them and the laws established 
by common consent. Here we find the natural and necessary boundary 
line, between those things which rest in common consent, and those which 
are wholly independent of human legislation. Now human legislation, 
common consent, is the acknowledged source of political sovereignty. 
Political sovereignty, then, the power of the political state as such, can- 
not be construed to authorize laws "which infringe upon the absolute 
right of individual self-government, as just defined. It thus appears, 
that all political sovereignty, how absolute soever we suppose it to be, 
is subject to natural limits ; and that if a people should actually grant 
to their government an arbitrary and unlimited power, this grant would 
itself be void and of no effect. 

But what proportion of the number of the parties to the social com- 
pact may give the final judgment upon questions involving its inter- 
pretation and construction ? In other words, what is a naturally suffi- 
cient majority for the decision of matters of common concern ? It is 
doubtless true, that if there be any justice in allowing the decision of a 
majority to overrule that of a minorit} T , then the greater the majority the 
greater the justice of their cause and the more binding their decision. 

In order to a just disposition of this question, we must carefully dis- 
tinguish the absolute rights of men, from those which arise in their 
relations to each other. For all our people agree that men have rights 
which are inherent from birth, inseparable from their nature, and there- 
fore inalienable, not to be varied or changed by the act of a majority, nor 
even by the act of all together. It is therefore only in matters which 
involve their relations to each other, and which are of common and equal 
importance to all, in their character of members of society, thai the will 
of all is the law of each. Even in their relations to each other, there 
are certain fundamentals, which cannot be positively settled while a 
respectable minority dissents ; and this very question, of the number of 



OF THE UNITED STATES. 17 

implied, from the nature and objects of the organic law, or 
from anything else, the government assumed to be founded 

voices sufficient to determine the will of the whole, is one of those fun- 
damentals. 

It does not appear that reason determines how great the majority 
should be in matters not fundamental and not requiring the concurrence 
of all. But certain it is that reason denies the power of majorities in 
things fundamental, as well as concerning the absolute rights. Natural 
equity requires, that whatever affects or concerns all, should have the ap- 
probation of all. And this maxim of the civil law is peculiarly appli- 
cable here ; though not to those legislative assemblies which owe their 
existence to the social compact or fundamental law. The question, 
therefore, what majority may speak for all must be decided by a fun- 
damental article of the organic law ; that is, by the unanimous consent 
of all concerned. And then, if all agree that a number less than the 
whole shall decide, a decision by that number, on matters not funda- 
mental and therefore within their control, must stand as the decision of 
all. "We say, on matters not fundamental and therefore within their 
control; for, as has just been shown, there are natural boundary lines, 
beyond which no human legislation can go. 

The bills of rights contained in our state constitutions, were doubtless 
originally designed to establish the boundary line, on the one side of 
which, matters of common and equal importance to all the members of 
society should be subject to laws expressive of the common will and con- 
sent ; but on the other side of which line, no human legislation should be 
suffered to conflict with the rights declared to be inherent and inaliena- 
ble. The federal constitution, as we shall hereinafter see, was framed 
in view of the very same boundary line, as it respects the internal self" 
government of each state, on the one hand, and the common govern- 
ment of all the states, on the other. Hence a fundamental principle, a 
truism in our system ; that, just as each individual member of society is 
naturally sovereign, free to govern himself as he pleases, in matters con- 
cerning no one but himself ; so is each member of the Union, each indi- 
vidual state,^politically sovereign, free to govern itself as it pleases, in 
matters alone concerning itself and its members ; and so, also, is the so- 
ciety of political communities, the United States, formed by the common 
voice of the states, politically sovereign, free to govern itself as it 
pleases, in matters alone concerning itself and its members. "What 
those matters are, which peculiarly concern each individual member of 
society, and in respect of which he is absolutely sovereign and free, the 
Bills of Rights in our state constitutions very precisely ascertain. What 
those matters are which peculiarly concern each state of the Union, and 
in respect of which it is absolutely sovereign and free, can at all times 
be as precisely ascertained by reference to the state constitutions on the 
one hand, and to the constitution of the United States on the other. 
"What those matters are which peculiarly concern the United States, and 

B 



18 POLITICAL AND CONSTITUTIONAL LAW 

therein must sooner or later become a government of un- 
limited and arbitrary power; for, whatever the power it 
may choose to assume, the assent of the people thereto is 
from something implied; and with every new assumption 
of a power as implied, the government takes a step, and 
that directly toward the goal of imperial and unlimited 
power, from which it is not in the nature of things that it 
should ever recede. 

In this connection I would say, that there is more to be 
feared by the people of this country from this very scheme 
of a gradual absorption of power than from all other 
dangers, internal and external, combined. 

I 18. Defi- It follows, from what we have seen, that the definition 
nitionofana- or description of a political state must necessarily vary 
tion or state. acC0 rding as the right of self-government, the supreme and 
unlimited authority or paramount sovereignty of the peo- 
ple, is reserved to themselves or vested in their rulers : in 
other words, according as we adhere to the one or to the 
other of the two principles, the sovereignty of the govern- 
ment, or the sovereignty of the people. 

According to the renowned oracle of the English com- 
mon law, l A state is a collective body, composed of a mul- 
titude of individuals, united for their safety and conveni- 
ence, and intending to act together as one man. If it there- 
fore is to act as one man, it ought to act by one uniform 
will. But, inasmuch as political communities are made up 
of many natural persons, each of whom has his particular 
will and inclination, these several wills cannot by any nat- 
ural union be joined together, or tempered and disposed 
into a lasting harmony, so as to constitute and produce 
that one uniform will of the whole. It can, therefore, 
be no otherwise produced than by a political union ; by the 
consent of all persons to submit their own private wills to 
the will of one man, or of one or more assemblies of men, 

in respect of which they are collectively sovereign, can at all times b© 
as precisely ascertained by reference to their organic law, their treaties 
with other states or nations, and the general code of positive interna- 
tional law. 



OF THE UNITED STATES. 19 

to whom the supreme authority is intrusted ; and this will 
of that one man, or assemblage of men, is in different 
states, according to their different constitutions, understood 
to be law.' 1 

This description of a state, be it observed, is applicable 
only to states wherein the supreme authority is intrusted 
to the will of one man, or of one or more assemblies of 
men, and not as with us, reserved to the people themselves. 2 

Suppose the individuals composing a society should agree 
to submit their own private wills to the will of one man, 
or of one or more assemblies of men ; could such an agree- 
ment be binding ? That a state of slavery can arise from 
any agreement, Blackstonc himself most positively denies.* 
The natural liberty of man, that is to say, his' duty and his 
right of self-government, are inherent and inalienable, and 
can no more be ceded or transferred than can his moral re- 
sponsibility or his conscience itself. It is therefore clear 
that this ' consent of all persons to submit their own pri- 
vate wills to the will of one man, or of one or more assem- 
blies of men/ which is designed to establish upon the ruins 
of the sovereignty of the people, the sovereignty of po- 
litical government, is nothing but a fiction, invented to 
conceal the iniquity and deformity of arbitrary power. 

What indeed is the original warrant for the institution 
of the political state ? It is certain that this can be nothing 
else than the inherent sovereignty of man — the right op 
self-government, which is, as we have seen, in the case of 
an individual, the right of a man to govern himself, in re- 
lation to things peculiarly affecting himself, according to 
his own judgment of what is right; and in relation to 
things in which others with him are equally interested, by 
his agreements with them ; in the case of a people, the right 
of that people to govern themselves, in their relations to 
each other, by laws expressive of their common will and 
consent; in their relations to other political states, by their 
compacts or treaties with them. To suppose that this, the 

UBl. Com. 52. 

2 See Judge Wilson's comments on Blackstone's theory, 2 Dall. 458-459. 

3 1 Bl. Com. 424. 



tion or state. 



20 POLITICAL AND CONSTITUTIONAL LAW 

sovereign right of each and of all, from which all manner 
of human legislation originally and naturally proceeds, can 
rightfully commit a suicidal act, surrender itself 'to the 
will of one man, or of one or more assemblies of men/ is 
the most absurd of political absurdities. It must therefore 
at all times remain, where alone it naturally and originally 
resides, in the people of a state, whose will alone, not the 
will of one man or of one or more assemblies of men. is 
understood to be law. 

1 18a. Gen- Puffendorf says, a nation or state is a compound moral 
eral descrip- person, whose will, united and tied together by those cov- 
tions of a na- enants which before passed among the multitude, is deemed 
the will of all ; to the end that it may use and apply the 
strength and riches of private persons towards maintain- 
ing the common peace and security. 1 

By a nation or civil community, says Rutherford, we 
mean a complete or perfect society of men who are in pos- 
session of their personal liberties, and have united them- 
selves into one body for the purposes of securing their 
rights and of promoting a common interest. 2 

And thus Yattel : Nations or states are bodies politic : 
societies of men, united together, for the purpose of procur- 
ing their safety and advantage by their joint efforts and 
mutual strength. Such a society, he adds, has its affairs 
and interests; it deliberates and takes resolutions in com- 
mon; thus becoming a moral person, having an under- 
standing and a will peculiar to itself, and being suscept- 
ible of obligations and rights. 3 

Quite as much to our purpose, perhaps, is the preamble 
to one of our state constitutions, in which it is declared by 
the people themselves, that the body politic is formed by a 
voluntary association of individuals; that it is a social 
compact, by which the whole people covenants with each 
citizen, and each citizen with the whole people, that all 
shall be governed by certain laws for the common good. 4 

1 Puff. L. of N. f b. 7, c. 2, 1 13. 

2 Rutherf. Inst. b. 1, c. l,gll; b. 2, c. 2, \ 1 ; Grotius, b. 1, c. 1, \ 14. 

3 Vattel, L. of N. Prelim., \\ 1, 2. 

* Preamble to Const, of Massachusetts. 



OF THE UNITED STATES. 21 

The description we give of a state in this country, must \ 19. What 
depend upon which of the three theories of our system we 1S meant by a 
adopt. The first 1 assumes that the United States are a ' 
nation, a single political state, one* single body of po- 
litical co-equals, called ' the people/ in whom, as electors, 2 
the political sovereignty of the country resides, and whose 
will, as expressed in the constitution of the United States, 
is their only organic and fundamental law ) that a state, 
such as the commonwealth of Massachusetts, for example, 
is a mere municipal, local, or election division of the Nation. 

In accordance with the second and third of the theories 
formerly mentioned, 3 a state, such as one of the United 
States of America, is a body of political co-equals, com- 
monly called ' the people/ in whom, as electors, the sover- 
eign and uncontrollable power originally resides, and whose 
will, as expressed and proclaimed by them in their written 
constitution of government, is their sole organic law and 
bond of political existence : that the United States are a 
community of such States, politically united only by a fed- 
eral constitution and a general government founded there- 
in. In other words, and in the language of the Supreme 
Court of the United States, 'A State, in the ordinary sense 
of the Constitution, is a political community of free citi- 
zens, occupying a territory of defined boundaries, and or- 
ganized under a government sanctioned and limited by a 
written Constitution and established by the consent of the 
governed. It is the union of such States, under a common 
Constitution, which forms the distinct and greater political 
unit which that Constitution designates as the United 
States/ * 

As will doubtless be observed, no distinction is made g 20. Dis- 
by any of the foregoing descriptions between a nation and. tinction be- 
tween a nation 

1 Ante, I 12. and a state. 

2 It will hereafter appear that there are not and never 'were any elec- 
tors clothed with the right of suffrage by authority of the Nation or 
authority of the United States. 

* Ante, % 13 and 14. 

* Texas v. White, 7 Wall. 721. 



22 POLITICAL AND CONSTITUTIONAL LAW 

a state. Some writers endeavor to make a distinction be- 
tween them, each stating it agreeably with the theory he 
desires to establish. If any distinction between them can 
be maintained, it is that which points out the one as a peo- 
ple peculiarly united by a natural order and condition of 
things, and considers the other as an artificial order and 
condition superadded thereto. Thus we speak of a people 
as a nation, when only considering their natural condition, 
as being naturally united by common qualities and char- 
acteristics which peculiarly distinguish them from every 
other people ) as a state, when referring to their ^political 
condition, as being politically united under one and the 
same government and system of laws. 

A single political state may be formed out of many differ- 
ent nations : a single nation may be the common parent 
of many different political states. 

In this connection we may note, that the term nation, 
as applicable to the people of this country (a people com- 
posed of all other nations), is wholly foreign to our politi- 
cal system, and is not to be found in any of our political 
constitutions which were adopted prior to the late civil 
war. 

\ 21. Duty The duty correlative of the right of political existence, 
of political is obviously that of political self-preservation ; a duty the 
self-preserva- performance of which consists in constant efforts to pre- 
tion. serve the principles of the political constitution. 

National self-preservation is quite another and a differ- 
ent matter. The necessity of this is always the plea in 
behalf of usurpation. Upon this ground, the principles 
of the political constitution can be no longer acknowl- 
edged. One supreme necessity rules; all that is done is 
done in the name of necessity ; and those entrusted with 
the administration of the constitution, whoever they be, 
and whatever the form of the government, have always 
a necessity of some sort or other, for their warrant and 
justification : so that under the plea of national self-preser- 
vation, the organic law of the political system, is set at 
defiance, and political self-preservation, the preservation 



OF THE UNITED STATES. 23 

of the political state, remains no longer possible for the 
people without recourse to political revolution. Hence 
the declaration to be found in many of our state constitu- 
tions, that ' The doctrine of non-resistance of arbitrary 
power is absurd, slavish, and destructive of the good and 
happiness of mankind/ 1 In short, the plea of national 
self-preservation is necessary only when treason to the 
constitution, and to the sovereigns who made it, is secretly 
intended. For, if what is proposed to be done may be 
done pursuant to the sovereign will, as expressed in the 
constitution, then this alone is the all sufficient warrant, 
and nothing is heard of necessity ; but whatever is done is 
done by authority of the constitution, for the preservation 
of the political state, the maintenance of the regular ad- 
ministration of justice, and the protection of the liberties 
of the people. 2 

1 Const. N. H. Part I, Art. 10 ; Md. Declaration of Eights, Art. 4 y 
Tenn. Art. 1, \ 2 ; Ky. Art. 13, \ 2. 

2 ' Wise politicians know that every breach of the fundamental laws,, 
though dictated by necessity, impairs that sacred reverence which ought 
to be maintained in the breast of rulers towards the constitution of a 
country, and forms a precedent for other breaches, where the same plea 
of necessity does not exist at all, or is less urgent and palpable.' Alex- 
ander Hamilton, The Federalist, No. 25, p. 115. 'Necessity, especially 
in politics, often occasions false hopes, false reasonings, and a system 
of measures correspondently erroneous.' Id. No. 35, p. 152. It is trans- 
parently clear to every reflecting mind, that the plea of necessity cannot 
be admitted, under a written constitution, without arming the rulers 
with an arbitrary power, superior to the sovereign will, a power to 
wholly subvert the organic law, and to rule by no rule but that of ca- 
price. A more dangerous attack upon the constitution cannot be de- 
vised ; and a people who permit it deserve to be enslaved. 

To attack the constitution" of a state, says Yattel, and to violate its 
rules, is a capital crime against the nation ; and if those guilty of it are 
intrusted with authority, they add to their crime a perfidious abuse of 
their trust. The nation ought constantly to repress all violations of the 
constitution, with the utmost vigor and vigilance. (Vattel, L. of N. b. 
1, \\ 29, 30.) 



24 POLITICAL AND CONSTITUTIONAL LAW 



(2 e) OF THE POLITICAL STATE OF THE ANGLO-AMERICAN 
COLONIES BEFORE THE REVOLUTION. 

I 22. Rapid From the meeting of the first legislative assembly in 
rise of the col- America (consisting of the governor, council and burgesses 
onies. f Virginia), to the Declaration of Independence by the 

colonial congress of 1776, a period of but little more than 
a century and a half had elapsed. "Within that period, the 
thirteen separate political communities known in England 
as l our plantations in America/ had risen from the feeblest 
beginnings to so great a degree of prosperity as to number 
three millions of people, and sustain a commerce with the 
world amounting to more than a third of the whole trade 
of Great Britain. Their history is familiar. Their political 
state, however, before the Eevolution of 1776, we propose 
to briefly review. 

I 23. Their Political states are either sovereign and independent, or 
political de- subordinate and dependent. Of the latter sort were the 
pendence. American colonies under the British government. Settled 
at different periods of time, under widely different charters? 
grants or commissions, which rendered them wholly in- 
dependent of each other, they were, nevertheless, bound 
by a common allegiance to the British crown. 

§24. Differ- According to the theory of the British constitution, the 
ent kinds of title to this country which the English acquired by right of 
colonial gov- discovery was vested in the crown as the representative of 
ernments. ^ Q na ^ on . an( j - t j ie exclusive power to grant the same was 
a branch of the royal prerogative. The king could grant 
the title to the soil alone, reserving the power of govern- 
ment; or could grant them both, as it seemed expedient to 
him. The powers of government he could vest as he 
pleased; either in officers of his own appointment, in the 
proprietor or proprietors of the soil, or else in the people 
themselves. Hence three kinds of colonial governments? 
denominated royal, proprietary and chartered. 



OF THE UNITED STATES. 25 

In governments denominated royal, the appointment of \ 25. Royal 
the governor and council was reserved to the crown, and governments, 
only the members of the general assembly, the immediate 
representatives of the people, could be chosen or elected by 
them. Of this character were the governments of the 
colonies in New England, with the exceptions of Connecti- 
cut and Ehode Island; also the governments of New York, 
Virginia, Georgia, New Jersey after 1702, and the Carolinas 
after 1729. They were copied in a measure from that of 
the parent state. The legislative power was lodged in the 
governor, council and assembly ; in England it was vested 
in the king, lords and commons. In both England and 
America the judicial power was vested in judges appointed 
by the crown. The assemblymen in the colonies, as the 
commons in England, were elected by the people. Acts of 
the legislature, in both countries alike, required the ap- 
proval and sanction of the king. 

In some of the grants, the title to the territory and the g 26. Pro- 
powers of government were granted to a proprietor, who prletary gov- 
was thus invested with the office of governor. Here the ernments. 
council, judiciary and subordinate executive officers were 
appointed by the governor, and the assembly only, as in 
the former case, was chosen by the people. Of this species 
were the governments of Maryland and Pennsylvania; also 
of New Jersey till 1702, and the Carolinas till 1721. 1 

Another species of colonial government was founded in a $27. Chart- 
royal charter, in virtue of which, all the officers, legislative, ered govern- 
judicial and executive, were chosen by and from among the ments - 
people. Of this kind were the governments of Connecticut 
and Ehode Island. The charter of Connecticut, granted by 
Charles II in 1662, was remarkably favorable to the liber- 
ties of the people. It vested all the powers of govern- 
ment, legislative, judicial and executive, in the freemen of 
the corporation; and continued to form the basis of the 
government of the state until 1818, when the people estab- 
lished the present constitution. The charter of Ehode 

1 See 5 Pet. Cond. Kep. 531, 532. 



26 POLITICAL AND CONSTITUTIONAL LAW 

Island, also granted by Charles II, in 1663, and leaving the 
people of that province in like manner free to govern them- 
selves, reserved no more than allegiance to the king j and 
this charter of their liberties remained in force, as the su- 
preme organic law of the state, till even so late as 1842, 
when a new constitution of that state was framed and 
adopted by them. 

I 28. Inter- The several colonies were internally divided into towns, 
nal divisions townships or parishes, cities and counties. Their towns 
were small republics ; their township meetings, assemblies 
of the people ; where municipal affairs were debated and 
considered, township officers chosen, and legislative rep- 
resentatives elected. These meetings or assemblies were 
so many schools in which the people were early and con- 
stantly trained to the discussion and decision of political 
affairs. 

I 29. Rela- In relation to the parent state, the colonies were always 
tions to each eoxisidered;, not as a single community, but as several and 
., . distinct political bodies, having their separate affairs, rela- 

state. tions and issues, with the British crown. In relation to 
each other, all were equally sovereign, free and independ- 
ent. Each of them had its own legislature, its own judic- 
iary, its own executive, and its own peculiar laws. They 
had indeed their several disputes, verging upon wars, con- 
cerning their respective jurisdictions j the territorial limits 
of one or another being sometimes loosely defined. Con- 
necticut laid claim to lands in Pennsylvania; Pennsylvania 
to lands in Maryland. Vermont was claimed by New York 
on the one hand and by New Hampshire on the other. 
Yarious were the disputes as to bounds. But the bounds 
of a colony or province being once ascertained, no one de- 
nied that the permanent inhabitants within those bounds 
were subject to one and the same political body. The 
people were governed by the laws of the colony to which 
they belonged, and exercised the right of suffrage as pre- 
scribed by those laws. 






OF THE UNITED STATES. 27 

The subjects of each colony, however, were British sub- \ 30. Their 
jects; all were bound by a common allegiance to the Brit- common alle_ 
ish crown ; the nature of which obligation, or tie of the & iance * 
feudal subject to his feudal sovereign, is thus explained by 
Blackstone : 

'Allegiance is the tie, or Hgamen, which binds the subject 
to the king, in return for that protection which the king 
affords the subject. The thing itself, or substantial part of 
it, is founded in reason and the nature of government; the 
name and the form are derived to us from our Gothic an- 
cestors. Under the feudal system, every owner of lands 
held them in subjection to some superior, or lord, from 
whom or whose ancestors the tenant or vassal had received 
them; and there was a mutual trust or confidence subsist- 
ing between the lord and vassal, that the lord should 
protect the vassal in the enjoyment of the territory he had 
granted him, and, on the other hand, that the vassal should 
be faithful to the lord, and defend him againt all his ene- 
mies. This obligation on the part of the vassal was called 
fidelitas, or fealty ; and an oath of fealty was required by 
the feudal law, to be taken by all tenants to their land- 
lord/ (1 Bl. Com. 366.) 

From the settlement of the colonies, the characteristic g3i. Acom- 
of the people was their jealously of their rights and mon charact- 
liberties. Nor were they deficient in the knowledge of eristic of the 
these. The study of government, politics and law, was P eo P le - 
not neglected by the Americans of the eighteenth century ; 
and quick to perceive the tendency of political affairs, 
they were rather disposed to question the ordinary meas- 
ures of government than to passively submit to the exer- 
cise of unknown or doubtful powers. 

The parent state was equally jealous of the increasing 
prosperity and power of her colonies. Their growing 
wealth had provoked her cupidity, and the monopoly of 
their trade had replenished her revenue. The bare possi- 
bility that at ever so distant a time they should become 
independent was not to be thought of but with feelings 
of deep concern. Hence the various measures of the Brit- 



28 POLITICAL AND CONSTITUTIONAL LAW 

ish Parliament, to secure the dependence of the colonies, 
on the one hand, and to draw a revenue from them, on 
the other. 

\ 32. The Parliamentary supremacy was urged in England. Char- 
issue between tered privileges and the guaranties of the British consti- 

e co omes t u tion were asserted in America. Thus was presented the 
and the par- .... . l 

ent state original issue between the colonies and the parent state ; 

the question of taxation without representation being 

rather the occasion than the cause of the rupture between 

them. 

The regular mode of obtaining aids from the several 
colonies, and the only mode consistent with the nature and 
principles of their governments, had been to make a dis- 
tinct requisition on each, through its governor, for a grant 
of such sum or sums to the king, as it should deem in pro- 
portion to its means. Of their ability to contribute to the 
support of the parent state, the people of each colony had 
long been entitled to judge for themselves; and their 
voice had been heard through their chosen representatives 
in their several legislative assemblies. They had enjoyed 
this right from the time of their settlement in the country ; 
and as no other mode of taxation, on the basis of repre- 
sentation, had ever been devised, they held it to be of 
the highest importance to them. They were not unwilling 
nor had they shown any indisposition, to grant such aids 
to the crown as were duly proportioned to their means, 
when called for in the usual constitutional manner. 

But the right of parliament to tax the colonies, without 
their consent, had often been asserted in England, and was 
now to be put to a test. A revenue was now to be raised 
by taxing colonial imports, and imposing stamp duties on 
paper. In 1764, a bill was accordingly passed, imposing 
duties on goods imported by the colonists from such of the 
West Indies as did not belong to Great Britain; and in 
March, 1765, the stamp act was passed, though not without 
considerable opposition in the British legislature. 

\ 33. The The passage of this act, requiring the use of govern- 
stamp act. 



OF THE UNITED STATES. 29 

ment stamps, aroused a general feeling of indignation 
among the people of the several colonies, to whom the 
measure appeared as evincing the design of parliament to 
tax them at pleasure, and without regard to their constitu- 
tional and chartered privileges. It furnished the topic of 
discussion throughout the country ; the occasion of tumult- 
uous gatherings and riotous proceedings in Boston; and 
of hostile and exciting expositions of ministerial designs 
in the public press. 

A plausible pretext was given for this act : ' that a sum 
might be raised sufficient for the defence of the colonies 
against a foreign enemy. ' This pretext failed to satisfy 
the colonies. They not only asserted their ability to de- 
fend themselves, but denied the right of parliament to tax 
them at all. 

Eefore the passage of this act, the colonies had sepa- \ 34. Oppo 
rately remonstrated, through their several representative sition thereto, 
agents in London ; and now this opposition was strength- 
ened and renewed. In every colony, associations of the 
people were formed, and agreements were made to prevent 
the sale of British importations, and thus to encourage 
domestic productions and home manufactures ; by which 
it was hoped to arouse and enlist the manufacturing inter- 
ests of England in favor of a repeal of the obnoxious acts. 

The assembly of Yirginia was in session when the news g 35. Con- 
of the passage of the act was received; and on the 28th gress of 1765. 
of May, 1765, passed spirited resolutions, asserting the ex- 
clusive right of that colony to tax herself, and preparing 
the people for systematic opposition. 

In relation to matters of common concern, the colonies 
had long been accustomed to consult the sentiments and 
wishes of each other. The assembly of Massachusetts ac- 
cordingly proposed, by resolutions passed on the 6th of 
June, that a congress of committees from the several colo- 
nial assemblies should be convened at JSTew York, on the 
second Tuesday of October, to consult on the state of the 
colonies. This proposition was communicated to the other 



30 POLITICAL AND CONSTITUTIONAL LAW 

colonial assemblies ; and a committee of each was ap- 
pointed, and specially instructed as to the objects in view. 
Committees from the assemblies of Massachusetts, Ehode 
Island, Connecticut, New York, New Jersey, Pennsylvania, 
Delaware, Maryland, and South Carolina, assembled at the 
time and place proposed. New Hampshire, Georgia, Vir- 
ginia and North Carolina, were unrepresented in this body, 
although concurring in its objects. This congress, or council 
of nine committees, — each committee representing its own 
colonial assembly, and all convened for the purpose of 
petitioning for redress of common grievances, — framed a 
declaration of the rights of the colonies, a petition to the 
king, and a memorial to parliament, concerning the meas- 
ures of which they complained. Assuming, as a fixed and 
settled principle of the British constitution, that taxation 
and representation were inseparable, and that the colonies 
were not, and could not be, represented in parliament, they 
declared that the exclusive power of taxing the people of 
the colonies resided in their own colonial legislatures. 

§ 36. Om- I n March, 1766, after much debating in the British parlia- 
nipotence of ment, the repeal of the stamp act was carried; this, how- 
parliament ever, upon passing an act, — for securing the dependence 
ec are . ^ America on Q- rea t Britain, — which act declared that the 
parliament had, and of right ought to have, power to bind 
the colonies in all cases whatsoever. 

\ 37. Con- Thus early was the issue distinctly defined and pre- 
gressof l</4. sen t e d. The unlimited power of parliament to bind the 
colonies, in all cases whatsoever, was asserted by Great 
Britain. This power of parliament was denied by the colo- 
nies ; and the exclusive right of each to tax itself, in its 
own colonial assembly, was by each and by all explicitly 
afiirmed. 

The contest, thus begun, engaged the attention of the 
British legislature and colonial assemblies for many years, 
parliament persisting in arbitrary measures, and the colo- 
nies continuing to oppose them. The propriety of a second 
general council of the colonies was now become evident to 



OF THE UNITED STATES. 31 

all; and in May, 1774, the assembly of Massachusetts again 
took the lead, proposing a congress of delegates from all 
the provinces, and appointing and instructing five persons, 
distinguished for their ability and patriotism, to represent 
Massachusetts in this congress. The example was approved 
and followed by eleven other colonies, by each of whom a 
number of delegates were accordingly chosen and commis- 
sioned. 

This congress, composed of from two to seven delegates 
on behalf of each colony represented, assembled at Phila- 
delphia on the 5th of September, 1774 ; and during its ses- 
sion, passed a series of resolutions, proposing such measures 
as seemed expedient, and recommending to the several 
colonies the appointment of committees to enforce them. 
Following very closely in the steps of its predecessor, it 
also adopted a declaration of rights, an address to the peo- 
ple of Great Britain, and a loyal petition to his majesty: 
for as yet, not even a desire for independence had been 
anywhere publicly avowed, and the only object in view 
was 'to promote and establish harmony, between Great 
Britain and the colonies, on a constitutional foundation/ 
After a session of nearly eight weeks, this congress dis- 
solved itself, recommending to the colonies the election of 
delegates for another to meet at Philadelphia on the 10th 
of May, 1775, unless the redress of their common griev- 
ances should be before then obtained. 



(3 e) OF THE POLITICAL MEASURES OF THE REVOLUTION : 
AND HEREIN, FIRST, 

(1/) OF THE RESUMPTION OF THE POLITICAL SOVER- 
EIGNTY BY THE PEOPLE, PENDING THE REVOLUTION. 

The right of a people to an independent political exist- * s8 Rjo-ht 
ence depends in a measure on relations of fact; of which, f revolution, 
however, the people themselves are the rightful judge : the 
original right of men to establish the political state, being 



32 POLITICAL AND CONSTITUTIONAL LAW 

founded in nothing but the principle of self-government) 
and their right to resume, remodel and revest the political 
powers, — in a word, the right of revolution, — being given 
by the same original warrant. The political state is but a 
means to a definite end ; and this end, as all admit, is the 
protection of mankind in the enjoyment of those absolute 
rights which were vested in them by the immutable laws 
of nature : l the right of self-government being one of those 
absolute rights, and the most important of all, since upon 
this the enjoyment of the rest depends. 

£39. Politi- According to the nature and character of the colonial 

sovereign- governments, no general authority over all could exist, 
ty resumablo to , ^ ,, ' n ° , , , , 

in three avs otner than that of the parent state ; and no open resistance 

to this authority could rightfully be made, without a re- 
sumption of the political sovereignty by the people them- 
selves, and a delegation of powers by them to their chosen 
representatives. But this resumption and delegation of 
the powers of government was possible only in one of 
three ways: either by the people of the whole country, 
acting as one people ; or by the people of each colony sev- 
erally, acting by and for themselves as a sovereign and 
independent community; or else by a confederacy of the 
colonies — each acting as a sovereign and independent body, 
and, at the same time, as a member of a larger political 
organization. In which of these three ways, or by whom, 
the political sovereignty was actually resumed, it is of 
primary importance to observe. For to the sovereign or 
sovereigns, the body or bodies of people, who originally 
resumed the powers of government, allegiance of course 
became due. 

§40. In what A period of suspense undoubtedly followed the dissolu- 
way and by tion of the congress of 1774. The question was, would the 
wiom the British government persist in its arbitrary course, and 
government f° rce the colonies to wholly surrender their rights of in- 
were resumed ternal self-government, or actually resume the political 
and revested, sovereignty and maintain their rights by the sword? Sub- 

il Bl. Com. 124. 






OF THE UNITED STATES. 33 

mission to arbitrary rule was not to be expected of the 
Americans of the eighteenth century. A persistent indif- 
ference to their many petitions for redress of grievances, 
on the part of the British government, was to be the signal 
for the assembling of another congress of the colonies on 
the 10th of May, 1775. But the election of delegates to this 
congress meant nothing less than a full and complete re- 
sumption of the political sovereignty. By whom ? — the con- , 
gress or the colonies ? Since the delegates to this congress 
were to be, as those of the preceding congress had been, ap- 
pointed and commissioned by and on behalf of each colony, 
and since the powers of each several body of colonial dele- 
gates were to be derived from the people of the colony by 
and on behalf of whom chosen and commissioned, it fol- 
lowed, as a matter of course, that this resumption of the 
political sovereignty was to be by the people of each of the 
colonies severally, as a sovereign and independent commu- 
nity. The delegates to this congress were accordingly 
chosen and commissioned, not by the people of the country 
at large, but by the people of each colony, acting as a sep- 
arate and sovereign body, by and through their deputies in 
their state or colonial convention, or their representatives 
in their colonial assembly. 1 

1 In either case, whether the delegates from each colony to the general 
congress were chosen by the deputies of the people in their state or co- 
lonial convention, or by their representatives in their colonial assembly, 
or by municipal corporations, the authority of those delegates, however 
general or limited, was derived from the people of each colony, as the 
only acknowledged source of political power. In electing delegates or 
representatives, each body of people composing a colony or state, was 
governed by its own election law ; and no one but a voter of that colony 
or state, qualified as such by its own peculiar law, was admitted to any 
participation in the resolutions of its sovereign will. No doubt can 
therefore emerge as to who 'the people' of each colony were; anymore 
than now, as to who ' the people ' of each state are ; they originally 
were, and still are, the body of voters or electors composing each state ; 
the only body from which, in our system, any authority of a public or 
political nature was ever derived. Nothing is more fundamental, or of 
greater importance, in our system, than a clear understanding of the sim- 
ple facts, that the sovereign, supreme, and uncontrollable authority always 
resides in the body of voters or electors composing the political state ; 



34 POLITICAL AND CONSTITUTIONAL LAW 

Each colony deputed as many or as few deputies as it 
pleased, to represent and to speak its will, as a distinct, 
sovereign and independent state, in this congressional 
union or confederation of the states. The delegates of each 
several colony, varying in number at different times from 
two to nine, had only one vote, and this they cast, in every 
case, not individually as representatives of the people of 
the country at large, but as the separate and independent- 
vote of one representative body, and for and on behalf of 
their own particular state ; and this in the exercise of au- 
thority conveyed to them by their written instructions or 
commissions, as delegates or commissioners of the states 
they represented. JSTo final vote was given in this congress 
but as the vote of a particular colony or state by name; 
the vote of each colony or state, given by its delegates, was 
given as the vote of a sovereign political body, and the 
congress itself was a congress, and the powers it wielded 
were powers, not of the American people as one political 
state, but of the thirteen colonies or states as severally 
sovereign, free and independent. 

This is a part of our political history which no one has 
been able to obscure, and which conclusively settles the 
question by whom or what body or bodies the political 

that the voters or electors composing a particular state, always vote by 
their own inherent right, and not by virtue of any extraneous authority ; 
and that there always were as many independent bodies of electors, as 
there were states in the union. These electors are in fact the absolute 
sovereigns ; there is no restriction of their power, but their constitution ; 
and this they charige at their pleasure. In the language of Chief Justice 
Marshall, ' The people made the constitution, and the people can unmake 
it. It is a creature of their will, and lives only by their will.'' Cohens v. 
Virginia, 5 Cond. E. 10S. If it be said that the great chief justice, by ' the 
people' meant the people of the whole country as one political body, the 
answer is, that no such meaning was possible, since, as every one knows, 
the voting by the people has always been done by them as electors of 
some particular state, and the people of each state vote and always have 
voted under their own election law, and not under or by virtue of any 
law or authority extraneous to their own will. Those who attempt to 
maintain that the people of the United States have a history as compos- 
ing one political body, ought to show U3 an instance of an election at 
which some one elector, at least, voted under and by virtue of the law 
of that political body. 



OF THE UNITED STATES. 35 

sovereignty was resumed and the powers of government 
revested. 

The actual resumption of the political sovereignty by \ 41. Action 
the people of each colony commenced with the election of of the P eo P le 
deputies to their state convention, or to their colonial as- 
sembly, by which convention or assembly their delegates 
to the general congress were appointed, commissioned and 
instructed. It is proper, however, to observe that, in many 
of the colonies, steps had been taken by the people in the 
same direction, long before this second congress was called. 
As early, indeed, as 1768, the royal governor of Massachu- 
setts refusing to convene the general assembly, the people 
thereof by their deputies assembled in convention, all the 
towns but one being there represented, voted ' that there 
is apprehension in the minds of many of an approaching 
rupture with France/ and warned the inhabitants to put 
themselves in a posture of defence against any sudden at- 
tack of an enemy. This movement of the people of Mas- 
sachusetts was occasioned by the news that a number of 
British troops had been ordered to Boston, and was, so far 
as it went, an actual resumption of the political sovereignty 
by the people of that commonwealth. In 1774, also, fur- 
ther asserting their right of self-government, upon the dis- 
solution of the assembly by the royal governor, the mem- 
bers thereof resolved themselves into a provincial congress, 
and appointed committees of i safety ' and 'supplies/ and 
voted to equip twelve thousand men, and to enlist one- 
fourth of the militia as minute-men, who should be ready 
for action at a moment's warning. 

As another instance of colonial movements having the \ 42. Move- 
same objects in view, it may also be noted, that early in ments in New- 
July, 1774, the electors of the counties of New Jersey as- Jerse y* 
sembled in their county towns, and after passing resolutions 
in opposition to the measures of the British government, 
elected deputies to a colonial convention, and clothed them 
with authority to appoint and commission the delegates of 
that colony to the general congress of all the colonies, then 



36 POLITICAL AND CONSTITUTIONAL LAW 

about to meet in Philadelphia. A second convention of 
the deputies of the people assembled at Trenton, May 23d, 
1775 - y and, among other things, directed that one or more 
companies of eighty be formed in each township or cor- 
poration ; and in order to raise the necessary funds, im- 
posed a tax of £10,000. It re-assembled, August 5th, 1775 r 
and directed that fifty-four companies be organized, each 
of sixty-four minute-men. This convention, or provincial 
congress, as it was called, not only represented and actu- 
ally assumed the political sovereignty of the people of the 
colony, but also provided for its own duration and future 
existence, as the supreme head of the political state, by 
directing that, during the continuance of the struggle with 
Great Britain, the inhabitants qualified to vote should 
yearly choose deputies thereto. It again convened at Bur- 
lington, June 10th, 1776 ; and on the 2d of July of that 
year completed the work of framing and establishing a 
political constitution for the government of the state. Thus 
was the political sovereignty resumed, remodelled and re- 
vested by the people of that state. 

\ 43. Other For a long time prior to the unanimous declaration of 
movements, independence by the thirteen colonies, they had steadily 
advanced from their condition of colonial dependence, to 
the position of self-governing and independent states ) and 
it is difficult to fix the exact point of time when any one 
became, in fact, possessed of those sovereign powers which 
before the Revolution were vested in the parliament of 
Great Britain. Prior to any declaration of independence 
in congress, New Jersey, Yirginia, and South Carolina had 
severally ordained and established their state constitutions, 
and thereby completed the work of resuming, new-model- 
ling, and re- vesting the powers of government, so far as it 
concerned themselves. In some of the colonies, the powers 
of government had already passed into the hands of the 
people, and changes in their organic law were wholly un- 
necessary. Connecticut and Ehode Island desired no freer 
constitutions than their respective charters ; and these they 
continued to observe, as we have seen ; not only throughout 



OF THE UNITED STATES. 37 

the Revolution, but for many years after the adoption of 
the federal constitution. In others, also, the adoption of 
new constitutions was deferred, although the general con- 
gress had recommended to the several states the formation 
of such governments as would best promote the happiness 
of the people, pending the dispute with Great Britain. The 
resumption of the powers of government, however, was 
necessarily prior, in the nature of things, to any remodel- 
ling or new delegation thereof; prior, indeed, to any dec- 
laration of independence by the deputies or representatives 
of the people. A declaration of independence was doubt- 
less proper, as a public political act, but in nowise essential 
to complete the independence of any of the states. Vir- 
ginia, nevertheless, in a solemn convention of her people, — 
having previously instructed her delegates in congress to 
propose to that body to declare the colonies free and inde- 
pendent states, and being seemingly impatient of delay, — 
declared herself free, sovereign and independent, on the 
29th of June, 1776. The people of the several counties and 
corporations of Virginia elected deputies to meet in state 
convention on the 6th of May, 1776, for the purpose of 
framing a government founded in the authority of the 
people. This convention assembled at the time appointed, 
and continued in session till the 5th of July. On the 12th 
of June, the convention passed a Bill or Declaration of 
Bights, which was subsequently prefixed to the constitu- 
tion of that state; as was also their Declaration of Inde- 
pendence : a comparison of which with the Declaration of 
Independence by congress on the 4th of July, might, we 
conceive, very naturally lead to the conclusion that the 
author of the one was the author of the other ; even were 
it unknown that a delegate from Virginia was the propo- 
nent and author of the Declaration by congress. 

It is unimportant to fix the day or precise point of time, 
when any particular colony had actually completed the 
work of resuming to itself that political sovereignty which 
by the common consent of its people had long been vested 
in the government of Great Britain. But it is not unim- 



44. 



38 POLITICAL AND CONSTITUTIONAL LAW 

portant to observe, respecting the method of resuming 
that sovereignty, that our history is no warrant for the as- 
sumption that it was first usurped by a revolutionary body> 
and then gratuitously presented to the American people at 
large. 1 If the resumption of the sovereignty by the peo- 
ple, was usurpation, the people of each colony, not the 
people of the whole country as one body, nor the members 
of the Continental congress, were the original usurpers, 
and this resumption or usurpation is first seen in the elec- 
tions of delegates and representatives of the people, and 
these elections were conducted in each colony by the peo- 
ple thereof, acting by their own authority and sovereign 
will as expressed in their own election law. It is true that 
each of the colonies relied upon the general co-operaiion 
of all, and that from the beginning, this co-operation was 
to be directed by a common council of the confederate 
colonies, composed of delegates from each; the general 
character, and important political acts of which council, we 
will next examine. 



(2 /) OF THE GENERAL CONGRESS OF THE REVOLUTION. 

I 45. Com- The delegates composing this congress were chosen, as 

position and we have seen, not by the American people at large, either 

character of ag subjects of England, or as citizens of America, but by the 

is congress. p e0 pj e f eacn colony, acting as a sovereign people, through 

their chosen representatives. ~No tolerated usurper or 

body of usurpers was acknowledged to be the source of 

1 Volumes upon volumes of political jargon, have latterly been pub- 
lished, which must, by every logical mind, be reduced to this absurd as- 
sumption ; and this, from Story to Von Hoist, is ever repeated in one 
form or another, as the key note to the chorus of national unit} 7 . Heed 
the voice of wisdom and be wise ! ' The Declaration of Independence 
did not create thirteen sovereign states, but the representatives of the peo- 
ple declared that the former English colonies, under the name which they 
had assumed of the United States of America, became, from the fourth 
day of July, 1776, a sovereign state.' Von Hoist's Constitutional and 
Political Hist, of the U. S. p. 6-7. This means, if it means anything, 
that the Continental congress was an irresponsible body of usurpers, and 
that this body was the source of all the rights which the people have 
enjoyed. 



OF THE UNITED STATES. 39 

power. The people of each colony were the recognized 
sovereign of the state. They acted by their own authority, 
and so acting, under their own election law, delegated por- 
tions of their sovereign power as they pleased, and to whom 
they pleased. Thus their deputies in congress were their 
agents, elected by and from among themselves, or by and 
from among their elected representatives, and the people 
of each colony continued to be, throughout the revolution, 
not only the sovereign, but the source of those powers 
which were exercised by their agents in the colonial as- 
sembly or in the congress of the colonies. 

The composition of the general congress of the colonies 
was therefore that of a congress of sovereign states, in 
which each state, however few or numerous its delegates, 
responded to the call of its name by a single vote. 

As a matter of fact, it is very well known that no con- 
gress or convention of the colonies or states was ever con- 
vened in which the voting was not by colonies or states. 
!N"ot a congress or convention of the American people, as 
one state or nation, either by themselves or their represen- 
tatives, has ever been held, for the obvious reason that the 
United States are the States United. 

Nor were the powers of this congress unlimited. They g 43. its 
were limited as delegated, viz., by the commissions and in- powers. 
structions given by each colony or state to the delegates 
chosen to represent it. The instructions were varied as 
emergencies seemed to require. But no delegate in this 
congress assumed to have an authority from the American 
people at large, or any authority other than that contained 
in his commission and his instructions from his own par- 
ticular state. The powers of the delegates at first were 
indeed little more than advisory. But in proportion 
as the danger increased, those powers were gradually en- 
larged, either by letters of instruction from their several 
constituencies, or by implication arising from a kind of in- 
definite authority, suited to the unknown exigencies that 
might arise. That an undefined authority is dangerous, 
and ought to be intrusted as cautiously as possible, every 



40 POLITICAL AND CONSTITUTIONAL LAW 

man must admit ; and none could take more pains than the 
delegates to congress for a long time did to get their au- 
thority equally and regularly defined by a ratification of 
the Articles of Confederation. 1 

I 47. Early j^ w [\[ f course De borne in mind, that prior to the first 

measures of meeting of this CO ngress, May 10th, 1775, hostilities had 
congress. ° o 7 ./ 7 7 

actually commenced : the people of Massachusetts had re- 
sumed to themselves the powers of government, had armed 
themselves and met the foe in defence of their rights. The 
attention of Congress was therefore first engaged in devis- 
ing plans and commending measures to the several colo- 
nies, with a view to the vigorous prosecution of the war, 
and the successful resistance of a military power which 
theretofore had been deemed irresistible. The course of 
Massachusetts was approved ; her cause was espoused as 
the cause of all; and early in July, 1775, the delegates in 
congress united in proclaiming to the world the reasons 
for the appeal to arms. 'We are reduced ' (said they) 'to 
the alternative of choosing an unconditional submission to 
the tyranny of irritated ministers, or resistance by force. 
The latter is our choice. We have counted the cost of this 
contest, and find nothing so dreadful as voluntary slavery/ 

\ 48. Dec- The desire for independence was not, at this time, uni- 
laration of in- 
dependence. 1 See a review of the powers of this congress by Iredell, Justice, in 
Penhallow v. Doane's Adm., 3 Dall. 91. From ' tracing the origin of the 
general powers of congress, from the time of the earliest exercise of their 
authority to the period when definite and express powers were solemnly 
and formally given to them by the Articles of Confederation,' that 
learned judge concludes in these words: — 'I conclude, therefore, that 
every particle of authority which originally resided either in congress, or 
in any branch of the state governments, was derived from the people 
who were permanent inhabitants of each province in the first instance, 
and afterwards became citizens of each state ; that this authority was 
conveyed by each body politic separately, and not by all the people in 
the several provinces or states jointly ; and of course, that no authority 
could be conveyed to the whole but that which previously was possessed 
by the several parts ; that the distinction between a state and the people 
of a state, has, in this respect, no foundation, each expression in sub- 
stance meaning the same thing.' Id. p. 94. 



OF THE UNITED STATES. 41 

versally entertained. In some of the colonies, the people 
were still looking forward to a just accommodation of dif- 
ferences, and a final re-union with the parent state. Even 
so late as November, 1775, the delegates in congress from 
Pennsylvania were expressly instructed to resist any 
movement for independence; while in many of the colo- 
nies, the soundness of the policy of a public and solemn 
declaration in accordance with the several positions which 
they had assumed, had been discussed and freely admitted. 
Such a declaration, it was thought, should be made in con- 
gress; the delegates of each colony being first instructed 
and clothed with authority in relation thereto. The con- 
vention of Virginia, in May, 1776, accordingly resolved, 
that her delegates in congress be instructed to propose to 
that body to declare the united colonies free and independ- 
ent states, absolved from all allegiance to, and dependence 
on, the king and parliament of Great Britain. The assem- 
blies of Maryland, Pennsylvania, and New York, which 
had shown the greatest reluctance, and forborne the long- 
est, had now assented to the measure; and on the 7th of 
June, the resolution was proposed in congress, by Eichard 
Henry Lee, of Virginia, and seconded by John Adams, of 
Massachusetts, ' That these united colonies are, and of right 
ought to be, free and independent states; and that all po- 
litical connection between them and the state of Great Brit- 
ain is, and ought to be totally dissolved/ On the second of 
July, this resolution was approved, and entered on the jour- 
nals. 1 The original draft of the declaration had been al- 
ready prepared by Mr. Jefferson, of Virginia ; and, on the 
memorable fourth of July, having undergone some slight 
alterations, it was adopted and sanctioned by a unanimous 

1 Upon the motion for independence, the voting (as on every other 
question) was by states, and there appears to have been a tie till the vote 
of Pennsylvania was given. Her vote was also divided ; of her five del- 
egates, two were for and two against the proposition, and the casting vote 
was carried, on the side of independence, by the vote of a single member 
of her delegation — John Morton. See ' Leiber's Encyclopedia Ameri- 
cana,' Ed. of 1832, Vol. ix, p. 57 ; ' Sanderson's Lives of the Signers,' Ed. 
of 1823, Vol. vr, p. 210; and 'Lossing's Lives of the Signers,' Ed. of 1848. 



42 POLITICAL AND CONSTITUTIONAL LAW 

vote. 1 After having been engrossed it was, on the second 
of August, signed by the delegates then present ) by some, 
indeed, who had not been ajypointed until after its adoption. 
As engrossed and signed, it read as follows : — 



DECLARATION OF INDEPENDENCE. 

In Congress, July 4, 1776. 

The Unanimous Declaration of the Thirteen United 
States of America. — When, in the course of human events, 
it becomes necessary for one people to dissolve the politi- 
cal bands which have connected them with another, and 
to assume, among the powers of the earth, the separate 
and equal station to which the laws of nature and nature's 
God entitle them, a decent respect to the opinions of man- 
kind requires, that they should declare the causes which 
impel them to the separation. 

We hold these truths to be self-evident: — that all men 
are created equal j that they are endowed by their Creator 
with certain unalienable rights ; that among these are life, 
liberty, and the pursuit of happiness. That to secure these 
rights, governments are instituted among men, deriving 
their just powers from the consent of the governed j that 
whenever any form of government becomes destructive of 
these ends, it is the right of the people to alter or to abol- 
ish it, and to institute a new government, laying its found- 
ation on such principles, and organizing its powers in such 
form as to them shall seem most likely to effect their safety 

1 ' So faultless had it issued from the hands of its author, that it was 
adopted as he had prepared it, pruned only of a few of its brightest inher- 
ent beauties, through a prudent deference to some of the states.' ' Wirt's 
Eulogy on Adams and Jefferson.' The authorship of the Declaration by 
congress was at one time in doubt. But though the author were now 
unknown, no doubt could well be entertained that he was the same with the 
author of the Declaration by Virginia of the 29th June, 1776, which, 
in very many respects, speaks the very same language, views and senti- 
ments. See note to \ 43, ante. That of Virginia may be found (prefixed 
to her constitution) in almost any of the publications of the state consti- 
tutions prior to the late war. 



OF THE UNITED STATES. 43 

and happiness. Prudence, indeed, will dictate, that gov- 
ernments long established should not be changed for light 
and transient causes; and accordingly all experience hath 
shown, that mankind are more disposed to suffer, while 
evils are sufferable, than to right themselves, by abolishing 
the forms to which they are accustomed. But when a long 
train of abuses and usurpations, pursuing invariably the 
same object, evinces a design to reduce them under abso- 
lute despotism, it is their right, it is their duty, to throw 
off such government, and to provide new guards for their 
future security. Such has been the patient sufferance of 
these colonies, and such is now the necessity which con. 
strains them to alter their former systems of government. 
The history of the present king of Great Britain is a his- 
tory of repeated injuries and usurpations, all having in 
direct object the establishment of an absolute tyranny over 
these states. To prove this, let facts be submitted to a 
candid world. 

He has refused his assent to laws the most wholesome 
and necessary for the public good. 

He has forbidden his governors to pass laws of immedi- 
ate and pressing importance, unless suspended in their 
operation, till his assent should be obtained ; and when so 
suspended, he has utterly neglected to attend to them. He 
has refused to pass other laws for the accommodation of 
large districts of people, unless those people would relin- 
quish the right of representation in the legislature — a right 
inestimable to them, and formidable to tyrants only. 

He has called together legislative bodies at places un- 
usual, uncomfortable, and distant from the repository of 
their public records, for the sole purpose of fatiguing them 
into compliance with his measures. 

He has dissolved representative houses repeatedly, for 
opposing with manly firmness, his invasions on the rights 
of the people. 

He has refused, for a long time after such dissolutions, 
to cause others to be elected; whereby the legislative 
powers, incapable of annihilation, have returned to the 
people at large for their exercise ; the State remaining, in 



44 POLITICAL AND CONSTITUTIONAL LAW 

the mean time, exj>osed to all the dangers of invasion from 
without and convulsions within. 

He has endeavored to prevent the population of these 
states; for that purpose obstructing the laws of naturali- 
zation of foreigners; refusing to pass others to encourage 
their migration hither, and raising the conditions of new 
appropriations of lands. 

He has obstructed the administration of justice, by re- 
fusing his assent to laws for establishing judiciary powers. 

He has made judges dependent on his will alone, for the 
tenure of their offices, and the amount and payment of 
their salaries. 

He has erected a multitude of new offices, and sent 
hither swarms of officers, to harass our people, and eat out 
their substance. 

He has kept among us, in times of peace, standing armies, 
without the consent of our legislatures. 

He has affected to render the military independent of, 
and superior to, the civil power. 

He has combined with others to subject us to a jurisdic- 
tion foreign to our Constitution, and unacknowledged by 
our laws ; giving his assent to their acts of pretended leg- 
islation : 

For quartering large bodies of armed troops among us : 

For protecting them, by a mock trial, from punishment 
for any murders which they should commit on the inhab- 
itants of these states : 

Tor cutting off our trade with all parts of the world : 

For imposing taxes on us without our consent : 

For depriving us, in many cases, of the benefits of trial 
by jury: 

For transporting us beyond seas to be tried for pretended 
offences : 

For abolishing the free system of English laws in a 
neighbouring province, establishing therein an arbitrary 
government, and enlarging its boundaries, so as to render 
it at once an example and fit instrument for introducing 
the same absolute rule into these colonies. 

For taking away our charters, abolishing our most valu- 



OF THE UNITED STATES. 45 

able laws, and altering, fundamentally, the forms of our 
governments : 

For suspending our own legislatures, and declaring them- 
selves invested with power to legislate for us in all cases 
whatsoever. 

He has abdicated government here, by declaring us out 
of his protection, and waging war against us. 

He has plundered our seas, ravaged our coasts, burnt our 
towns, and destroyed the lives of our people. 

He is at this time transporting large armies of foreign 
mercenaries to complete the works of death, desolation, 
and tyranny, already begun with circumstances of cruelty 
and perfidy, scarcely paralleled in the most barbarous ages, 
and totally unworthy the head of a civilized nation. 

He has constrained our fellow-citizens, taken captive on 
the high seas, to bear arms against their country, to become 
the executioners of their friends and brethren, or to fall 
themselves by their hands. 

He has excited domestic insurrections amongst us, and 
has endeavoured to bring on the inhabitants of our front- 
iers, the merciless Indian savages, whose known rule of 
warfare is an undistinguished destruction of all ages, sexes, 
and conditions. 

In every stage of these oppressions we have petitioned 
for redress in the most humble terms; our repeated peti- 
tions have been answered only by repeated injuries. A 
prince, whose character is thus marked by every act which 
may define a tyrant, is unfit to be the ruler of a free people. 

Nor have we been wanting in attentions to our British 
brethren. "We have warned them, from time to time, of 
attempts by their legislature to extend an unwarrantable 
jurisdiction over us. We have reminded them of the cir- 
cumstances of our emigration and settlement here. We 
have appealed to their native justice and magnanimity, and 
we have conjured them, by the ties of our common kin- 
dred, to disavow these usurpations, which would inevitably 
interrupt our connexions and correspondence. They too 
have been deaf to the voice of justice and of consanguinity. 
We must, therefore, acquiesce in the necessity which de- 



46 



POLITICAL AND CONSTITUTIONAL LAW 



n ounces our separation, and hold them, as we hold the rest 
of mankind — enemies in war, in peace, friends. 

We, therefore, the representatives of the United States 
of America, in General Congress assembled, appealing to 
the Supreme Judge of the world for the rectitude of our 
intentions, do, in the name and by the authority of the good 
people of these colonies, solemnly publish and declare, that 
these United Colonies are, and of right ought to be, free 
and independent States ; that they are absolved from all 
allegiance to the British crown, and that all political con- 
nexion between them and the State of Great Britain is, 
and ought to be, totally dissolved ; and that, as free and in- 
dependent States, they have full power to levy war, conclude 
peace, contract alliances, establish commerce, and to do all 
other acts and things which independent States may of 
right do. And for the support of this declaration, with a 
firm reliance on the protection of Divine Providence, we 
mutually pledge to each other our lives, our fortunes, and 
our sacred honour. 

John Hancock. 



new hampshire, 
josiah bartlett, 
William Whipple, 
Matthew Thornton. 

massachusetts bat. 
Samuel Adams, 
John Adams, 
Robert Treat Paine, 
Elbridge Gerry. 

rhode island, etc. 
Stephen Hopkins, 
William Ellery. 

connecticut. 
Roger Sherman, 
Samuel Huntingdon, 
William Williams, 
Oliver Wolcott. 



NEW YORK. 

William Floyd, 
Philip Livingston, 
Francis Lewis, 
Lewis Morris, 



new jersey. 
Richard Stockton, 
John Witherspoon, 
Francis Hopkins on, 
John Hart, 
Abraham Clark. 

pennsylvania. 
Robert Morris, 
Benjamin Rush, 
Benjamin Franklin, 
John Morton, 
George Clymer, 
James Smith, 
George Taylor, 
James Wilson, 
George Ross. 

delaware. 
Cesar Rodney, 
George Read, 
Thomas M'Kean. 

maryland. 
Samuel Chase, 
William Paca, 
Thomas Stone. 
Charles Carroll, of Carrollton. 



OF THE UNITED STATES. 



47 



virginia. 
George Wythe, 
Richard Henry Lee, 
Thomas Jefferson, 
Benjamin Harrison, 
Thomas Nelson, Jr., 
Francis Lightfoot Lee, 
Carter Braxton. 

north carolina. 
"William Hooper, 
Joseph Hewes, 
John Penn. 



south carolina. 

Edward Rutledge, 
Thomas Heyward, Jr., 
Thomas Lynch, Jr., 
Arthur Middleton. 



GEORGIA. 

Burton Gwinnet, 
Lyman Hall, 
George Walton. 



This grand manifesto was made, not upon the mere vo- \ 49. Oper- 
lition of the continental congress, but pursuant to instruc- ative clause of 
tions given by each of the colonies to its body of delegates. tllis act * 
New Hampshire, it is true, had instructed her delegates in 
favor of a declaration of a very different character; de- 
claring the united colonies one free and independent state. 1 
But no other colony or state was willing to join in this 
measure ; and therefore the delegates in congress, — those 
of each colony acting and voting on behalf, and by the 
sovereign authority, of their own particular state, — ' sol- 
emnly publish and declare, that these United Colonies are, 
and of right ought to t be, free and independent states; 

. . . . and that, as free and independent states, they 
have full power to levy war, conclude peace, contract alli- 
ances, establish commerce, and do all other acts and things 
which independent states may of right do/ 

In this connexion, however, it is proper to observe, that - 50 q ou ^ 
in the instructions given to its delegates by each of the federation of 
colonies, powers were also conferred upon them with a the states. 
view to their framing a confederacy of the states. 2 And 
therefore the motion of Eichard Henry Lee, on the 7th of 
June, was not simply for independence, but also for ' a plan 
of confederation, to be prepared and transmitted to the 
respective colonies for their consideration and approba- 
tion/ 3 A committee was accordingly appointed, on the 

1 See Bancroft's Hist. Vol. vm, p. 438. 

2 See the same, pp. 378, 437. 

3 Bancroft, vm, 389. 



48 POLITICAL AND CONSTITUTIONAL LAW 

11th of June, consisting of one delegate from each state, to 
prepare the articles of confederation between the states ; 
and this committee, appointed nearly a month before, and 
in anticipation of, the declaration of independence, re- 
ported the articles on the 12th of July, eight days after the 
declaration. 1 They were submitted to the several states 
for their ratification, and numerous objections and amend- 
ments were suggested by the states, or rather by the state 
legislatures; for they were not submitted to the people; 
which fact it was that afterward gave rise to the doubt of 
their validity. The first of these articles provided that 
'The style of this confederacy shall be "The United States 
of America." ' Anticipating this Federal Union, the del- 
egates in congress use this language — ' We, therefore, the 
representatives of the United States/ etc. And this 
Union was, in the course of time, accordingly formed: 
eleven states, namely, New Hampshire, Massachusetts, 
Ehode Island, Connecticut, New York, Pennsylvania, New 
Jersey, Virginia, North Carolina, South Carolina, and 
Georgia, assenting to and ratifying the Articles of Confed- 
eration in 1778 ; and the two remaining states, Delaware, 
in 1779, and Maryland, in 1781. 2 In the next place, there, 
fore, we direct attention to the Articles of the Union, at 
that time formed. 



ARTICLES OF CONFEDERATION AND PERPETUAL UNION 
BETWEEN THE STATES. 

To all to whom these presents shall come, we, the undersigned 
delegates of the States affixed to our names, send greeting : 
Whereas, the delegates of the United States of America, 
in congress assembled did, on the fifteenth day of Novem- 
ber, in the year of our Lord one thousand seven hundred 
and seventy-seven, and in the second year of the Inde- 
pendence of America, agree to certain Articles of Confed- 
eration and perpetual Union between the States of New 

1 See Curtis's Hist, of the Constitution, Vol. I, p. 53. 

2 Elliot's Debates, Yol. I, p. 78. 



OF THE UNITED STATES. 49 

Hampshire, Massachusetts-Bay, Khode-Island and Provi- 
dence Plantations, Connecticut, New-York, New- Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, North-Caro- 
lina, South-Carolina, and Georgia, in the words following, 
viz: 

Articles of Confederation and perpetual Union between the States of 
New Hampshire, Massachusetts-Bay, Khode-Island and Providence 
Plantations, Connecticut, New- York, New- Jersey, Pennsylvania, Dela- 
ware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia.. 

Article I. The style of this confederacy shall be, l The 
United States of America/ 

Art. II. Each State retains its sovereignty, freedom and 
independence, and every power, jurisdiction and right,, 
which is not by this confederation expressly delegated to 
the United States in congress assembled. 

Art. III. The said States hereby severally enter into a 
firm league of friendship with each other for their common 
defence, the security of their liberties, and their mutual and 
general welfare; binding themselves to assist each other 
against all force offered to, or attacks made upon them, or 
any of them, on account of religion, sovereignty, trade, or 
any other pretence whatever. 

Art. IV. The better to secure and perpetuate mutual 
friendship and intercourse among the people of the differ- 
ent States in this Union, the free inhabitants of each of these 
States, paupers, vagabonds, and fugitives from justice ex- 
cepted, shall be entitled to all privileges and immunities of 
free citizens in the several States; and the people of each 
State shall have free ingress and regress to and from any 
other State, and shall enjoy therein all the privileges of 
trade and commerce, subject to the same duties, imposi- 
tions, and restrictions, as the inhabitants thereof respect- 
ively, provided that such restrictions shall not extend so 
far as to prevent the removal of property imported into 
any State to any other State, of which the owner is an in- 
habitant; provided, also, that no imposition, duties, or re- 
striction, shall be laid by any State on the property of the 
United States, or either of them. 



50 POLITICAL AND CONSTITUTIONAL LAW 

If any person guilty of or charged with treason, felony, 
or other high misdemeanor, in any State, shall flee from 
justice, and be found in any of the United States, he shall, 
upon demand of the governor, or executive power of the 
State from which he fled, be delivered up, and removed to 
the State having jurisdiction of his offence. 

Full faith and credit shall be given in each of these 
States to the records, acts, and judicial proceedings of the 
courts and magistrates of every other State. 

Art. Y. For the more convenient management of the 
general interests of the United States, delegates shall be 
annually appointed in such manner as the legislature of 
each State shall direct, to meet in congress on the first 
Monday in November, in every year, with a power reserved 
to each State to recall its delegates or any of them, at any 
time within the year, and to send others in their stead for 
the remainder of the year. 

No State shall be represented in congress . by less than 
two nor by more than seven members; and no person shall 
be capable of being a delegate for more than three years in 
any term of six years; nor shall any person, being a dele- 
gate, be capable of holding any office under the United 
States, for which he, or another for his benefit, receives 
any salary, fees, or emolument of any kind. 

Each State shall maintain its own delegates in any meet- 
ing of the States, and while they act as members of the 
committee of the States. 

In determining questions in the United States in con- 
gress assembled, each State shall have one vote. 

Freedom of speech and debate in congress shall not be 
impeached or questioned in any court or place out of con- 
gress; and the members of congress shall be protected in 
their persons from arrests and imprisonments, during the 
time of their going to and from and attendance on congress, 
except for treason, felony, or breach of the peace. 

Art. YI. No State, without the consent of the United 
States in congress assembled, shall send any embassy to, 
or receive any embassy from, or enter into any conference, 
agreement, alliance, or treaty, with any king, prince, or 



OF THE UNITED STATES. 51 

state ; nor shall any person holding any office of profit or 
trust under the United States or any of them, accept of 
any present, emolument, office, or title of any kind what- 
ever, from any king, prince, or foreign state; nor shall the 
United States in congress assembled, or any of them, grant 
any title of nobility. 

JSTo two or more States shall enter into any treaty, con- 
federation, or alliance whatever between them, without 
the consent of the United States in congress assembled, 
specifying accurately the purposes for which the same is 
to be entered into, and how long it shall continue. 

No State shall lay any imposts or duties, which may in- 
terfere with any stipulations in treaties entered into by 
the United States in congress assembled, with any king, 
prince, or state, in pursuance of any treaties already pro- 
posed by congress to the courts of France and Spain. 

No vessels of war shall be kept up in time of peace, by 
any State, except such number only as shall be deemed 
necessary by the United States in congress assembled, for 
the defence of such State or its trade; nor shall any body 
of forces be kept up by any State in time of peace, except 
such number only as, in the judgment of the United States 
in congress assembled, shall be deemed requisite to gar- 
rison the forts necessary for the defence of such State; but 
every State shall always keep up a well-regulated and 
disciplined militia, sufficiently armed and accoutred, and 
shall provide and have constantly ready for use, in public 
stores, a due number of field pieces and tents, and a proper 
quantity of arms, ammunition, and camp equipage. 

~No State shall engage in any war without the consent 
of the United States in congress assembled, unless such 
State be actually invaded by enemies, or shall have re- 
ceived certain advice of a resolution being formed by some 
nation of Indians to invade such State, and the danger is 
so imminent as not to admit of a delay till the United States 
in congress assembled can be consulted; nor shall any 
State grant commissions to any ships or vessels of war, or 
letters of marque or reprisal, except it be after a declaration 
of war by the United States in congress assembled, and 



52 POLITICAL AND CONSTITUTIONAL LAW 

then only against the kingdom or state, and the subjects 
thereof, against which war has been so declared, and under 
such regulations as shall be established by the United States 
in congress assembled, unless such State be infested by pi- 
rates, in which case vessels of war may be fitted out for 
that occasion, and kept so long as the danger shall con- . 
tinue, or until the United States in congress assembled shall 
determine otherwise. 

Art. VII. When land forces are raised by any State for 
the common defence, all officers of or under the rank of 
colonel, shall be appointed by the legislature of each State 
respectively, by whom such forces shall be raised, or in 
such manner as such State shall direct ; and all vacancies 
shall be filled up by the State which first made the appoint- 
ment. 

Art. VIII. All charges of war, and all other expenses that, 
shall be incurred for the common defence or general wel- 
fare, and allowed by the United States in congress assem- 
bled, shall be defrayed out of a common treasury, which 
shall be supplied by the several States in proportion to the 
value of all land within each State granted to or surveyed 
for any person, as such land and the buildings and improve- 
ments thereon shall be estimated, according to such mode 
as the United States in congress assembled shall from time 
to time direct and appoint. 

The taxes for paying that proportion shall be laid and 
levied by the authority and direction of the legislatures of 
the several States, within the time agreed upon by the 
United States in congress assembled. 

Art. IX. The United States in congress assembled shall 
have the sole and exclusive right and power of determining- 
on peace and war, except in the cases mentioned in the sixth 
article : of sending and receiving embassadors : entering into 
treaties and alliances ; provided that no treaty of commerce 
shall be made whereby the legislative power of the respec- 
tive States shall be restrained from imposing such imposts 
and duties on foreigners as their own people are subjected 
to, or from prohibiting the exportation or importation of 
any species of goods or commodities whatsoever : of es- 



OF THE UNITED STATES. 53 

tablishing rules for deciding in all cases, what captures on 
land or water shall be legal, and in what manner prizes 
taken by land or naval forces in the service of the United 
States shall be divided or appropriated : of granting let- 
ters of marque and reprisal, in times of peace : appointing 
•courts for the trial of piracies and felonies committed on 
the high seas, and establishing courts for receiving and 
-determining finally appeals in all cases of captures ; pro- 
vided, that no member of congress shall be appointed a 
judge of any of the said courts. 

The United States in congress assembled shall also be 
the last resort on appeal in all disputes and differences 
now subsisting, or that hereafter may arise between two 
or more States concerning boundary, jurisdiction, or any 
other cause whatever; which authority shall always be ex- 
ercised in the manner following : whenever the legislative 
or executive authority or lawful agent of any state in con- 
troversy with another shall present a petition to congress, 
stating the matter in question, and praying for a hearing, 
notice thereof shall be given by order of congress to the 
legislative or executive authority of the other State in 
controversy, and a day assigned for the appearance of the 
parties, by their lawful agents, who shall then be directed 
to appoint by joint consent commissioners or judges to 
constitute a court for hearing and determining the matter 
in question ; but if they cannot agree, congress shall name 
three persons out of each of the United States, and from 
the list of such persons each party shall alternately strike 
out one, the petitioners beginning, until the number shall 
be reduced to thirteen ; and from that number not less than 
seven nor more than nine names, as congress shall direct, 
shall, in the presence of congress, be drawn out by lot ; 
and the persons whose names shall be so drawn, or any 
tive of them, shall be commissioners or judges, to hear and 
finally determine the controversy, so always as a major 
part of the judges, who shall hear the cause, shall agree in 
the determination; and if either party shall neglect to at> 
tend at the day appointed, without showing reasons which 
congress shall judge sufficient, or being present shall re- 



54 POLITICAL AND CONSTITUTIONAL LAW 

fuse to strike, the congress shall proceed to nominate three 
persons out of each State, and the secretary of congress shall 
strike in behalf of such party absent or refusing ; and the 
judgment and sentence of the court to be appointed in 
the manner before prescribed, shall be final and conclu- 
sive ; and if any of the parties shall refuse to submit to 
the authority of such court, or to appear, or defend their 
claim or cause, the court shall nevertheless proceed to 
pronounce sentence or judgment, which shall in like man- 
ner be final and decisive, the judgment or sentence, and 
other proceedings, being in either case transmitted to con- 
gress, and lodged among the acts of congress for the secu- 
rity of the parties concerned : provided, that every com- 
missioner, before he sits in judgment, shall take an oath,, 
to be administered by one of the judges of the supreme or 
superior court of the State, where the cause shall be tried, 
' well and truly to hear and determine the matter in ques- 
tion, according to the best of his judgment, without favor,, 
affection, or hope of reward :' provided, also, that no 
State shall be deprived of territory for the benefit of the 
United States. 

All controversies concerning the private right of soil, 
claimed under different grants of two or more States, 
whose jurisdictions as they may respect such lands and the 
States which passed such grants are adjusted, the said 
grants or either of them being at the same time claimed to 
have originated antecedent to such settlement of jurisdic- 
tion, shall, on the petition of either party to the congress 
of the United States, be finally determined, as near as. 
may be, in the same manner as is before prescribed for de- 
ciding disputes respecting territorial jurisdiction between 
different States, 

The United States in congress assembled shall also have- 
the sole and exclusive right and power of regulating the 
alloy and value of coin struck by their own authority, or by 
that of the respective States : fixing the standard of weights 
and measures throughout the United States : regulating the 
trade and managing all affairs with the Indians not mem- 
bers of any of the States j provided, that the legislative 



OF THE UNITED STATES. 55 

right of any State within its own limits be not infringed or 
violated : establishing and regulating post-offices from one 
State to another, throughout all the United States, and ex- 
acting such postage on the papers passing through the 
same as may be requisite to defray the expenses of the 
said office : appointing all officers of the land forces in the 
service of the United States, excepting regimental officers : 
appointing all the officers of the naval forces, and commis- 
sioning all officers whatever in the service of the United 
States : making rules for the government and regulation 
of the said land and naval forces, and directing their ope- 
rations. 

The United States in congress assembled shall have 
authority to appoint a committee to sit in the recess of 
congress, to be denominated ' a committee of the States ; ' 
and to consist of one delegate from each State, and to ap- 
point such other committees and civil officers as may be 
necessary for managing the general affairs of the United 
States, under their direction : to appoint one of their num.- 
ber to preside, provided that no person be allowed to serve> 
in the office of president more than one year in any term, 
of three years : to ascertain the necessary sums of money- 
to be raised for the service of the United States, and to 
appropriate and apply the same for defraying the public 
expenses : to borrow money or emit bills on the credit of 
the United States, transmitting every half year to the re- 
spective States an account of the sums of money so bor- 
rowed or emitted : to build and equip a navy : to agree 
upon the number of land forces, and to make requisitions 
from each State for its quota, in proportion to the number 
of white inhabitants in each State ; which requisition shall 
be binding, and thereupon the legislature of each State 
shall appoint the regimental officers, raise the men, and 
clothe, arm, and equip them in a soldier-like manner, at 
the expense of the United States; and the officers and men 
so clothed, armed and equipped, shall march to the place 
appointed, and within the time agreed on by the United 
States in congress assembled : but if the United States in 
congress assembled shall, on consideration of circumstan- 



56 POLITICAL AND CONSTITUTIONAL LAW 

ces, judge proper that any State should not raise men, or 
should raise a smaller number than its quota, and that any 
other State should raise a greater number of men than the 
quota thereof, such extra number shall be raised, officered, 
clothed, armed, and equipped, in the same manner as the 
quota of such State, unless the legislature of such State 
shall judge that such extra number cannot safely be spared 
out of the same; in which case they shall raise, officer, 
clothe, arm, and equip, as many of such extra number as 
they judge can safely be spared. And the officers and 
men so clothed, armed, and equipped, shall march to the 
place appointed, and within the time agreed on by the 
United States in congress assembled. 

The United States in congress assembled shall never 
engage in a war, nor grant letters of marque and reprisal 
in time of peace, nor enter into any treaties or alliances, 
nor coin money, nor regulate the value thereof, nor ascer- 
tain the sums and expenses necessary for the defence and 
welfare of the United States or any of them, nor emit bills, 
nor borrow money on the credit of the United States, nor 
appropriate money, nor agree upon the number of vessels 
of war to be built or purchased, or the number of land or 
sea forces to be raised, nor appoint a commander in chief 
of the army or navy, unless nine States assent to the same; 
nor shall a question on any other point, except for adjourn- 
ing from day to day, be determined, unless by the votes of 
a majority of the United States in congress assembled. 

The congress of the United States shall have power to 
adjourn to any time within the year, and to any place 
within the United States, so that no period of adjournment 
be for a longer duration than the space of six months; and 
shall publish the journal of their proceedings monthly, ex- 
ce])t such parts thereof relating to treaties, alliances, or 
military operations, as in their judgment require secresy; 
and the yeas and nays of the delegates of each State on 
any question shall be entered on the journal when it is de- 
sired by any delegate ; and the delegates of a State, or any 
of them, at his or their request, shall be furnished with a 
transcript of the said journal, except such parts as are 



OF THE UNITED STATES. 57 

above excepted, to lay before the legislatures of the several 
States. 

Art. X. The committee of the States, or any nine of 
them, shall be authorized to execute in the recess of con- 
gress, such of the powers of congress as the United States 
in congress assembled, by the consent of nine States, shall, 
from time to time, think expedient to vest them with; pro- 
vided that no power be delegated to the said committee, 
for the exercise of which, by the articles of confederation, 
the voice of nine States in the congress of the United States 
assembled is requisite. 

Art. XI. Canada, acceding to this confederation, and 
joining in the measures of the United States, shall be ad- 
mitted into, and entitled to, all the advantages of this 
union : but no other colony shall be admitted into the same 
unless such admission be agreed to by nine States. 

Art. XII. All bills of credit emitted, moneys borrowed, 
and debts contracted, by or under the authority of con- 
gress, before the assembling of the United States, in pur- 
suance of the present confederation, shall be deemed and 
considered as a charge against the United States, for pay- 
ment and satisfaction whereof the said United States and 
the public faith are hereby solemnly pledged. 

Art. XIII. Every State shall abide by the determina- 
tions of the United States in congress assembled, on all 
questions which, by this confederation, are submitted to 
them. And the articles of this confederation shall be in- 
violably observed by every State, and the union shall be 
perpetual; nor shall any alteration at any time hereafter 
be made in any of them, unless such alteration be agreed 
to in a congress of the United States, and be afterwards 
-confirmed by the legislature of every State. 

And whereas it has pleased the Great Governor of the 
world to incline the hearts of the legislatures we respect- 
ively represent in congress, to approve of and to authorize 
us to ratify the said articles of confederation and perpetual 
union : Know ye, That we, the undersigned delegates, by 
virtue of the power and authority to us given for that pur- 
pose, do, by these presents, in the name and in behalf of 



58 POLITICAL AND CONSTITUTIONAL LAW 

our respective constituents, fully and entirely ratify and 
confirm each and every of the said articles of confederation 
and perpetual union, and all and singular the matters and 
things therein contained; and we do further solemnly 
plight and engage the faith of our respective constituents 
that they shall abide by the determinations of the United 
States in congress assembled, on all questions which, by 
the said confederation, are submitted to them; and that 
the articles thereof shall be inviolably observed by the 
States we respectively represent j and that the union shall 
be perpetual. 

In witness whereof we have hereunto set our hands, in 
congress. Done at Philadelphia, in the State of Penn- 
sylvania, the ninth day of July, in the year of our Lord 
one thousand seven hundred and seventy-eight, and in 
the third year of the Independence of America. 

On the part and behalf of the State of New Hampshire. 
Josiah Bartlett, John Wentworth, jr., Aug. 8, 1778» 

On the part and behalf of the State of Massachusetts Bay. 
John Hancock, Francis Dana, 

Samuel Adams, James Loyell, 

ELBRIDGE GrERRY, SAMUEL HoLTEN. 

On the part and in behalf of the State of Rhode Island and Providence 

Plantations. 
"William Ellery, John Collins. 

Henry Marchant, 

On the part and behalf of the State of Connecticut. 
Roger Sherman, Titus Hosmer, 

Samuel Huntingdon, Andrew Adams. 

Oliver Wolcott, • 

On the part and behalf of the State of New York. 
Jas. Duane, Wm. Duer, 

Era. Lewis, Gouv. Morris. 

On the part and in behalf of the State of New Jersey. 
Jno. Witherspoon, Nath. Scudder, Nov. 26, 1778. 

On the part and behalf of the State of Pennsylvania. 
Eobt. Morris, William Cling an, 

Daniel Roberdeau, Joseph Reed, 22d July, 1778. 

Jona. Bayard Smith, 

On the part and behalf of the State of Delaware. 
Tho. M'Kean, Feb. 13, 1779, Nicholas Van Dyke. 

John Dickinson, May 5th, 1779, 

0?i the part and behalf of the State of Maryland. 
John Hanson, March 1, 1781, Daniel Carroll, March 1, 178L 



OF THE UNITED STATES. 59 

On the part and behalf of the State of Virginia. 
Kichard Henry Lee, Jno. Harvie, 

John Banister, Francis Lightfoot Lee. 

Thomas Adams, 

On the part and behalf of the State of North Carolina. 
John Penn, July 21, 1778, Jno. Williams. 

Corns. Harnett, 

On the part and behalf of the State of South Carolina. 
Henry Laurens, Richard Hutson, 

"William Henry Drayton, Thos. Heywood, jr. 

Jno. Mathews, 

On the part and behalf of the State of Georgia. 
Jno. Walton, 24th July, 1778, Edwd. Langworthy. 
Edwd. Telfair, 



To firmly secure the existence of the several colonies, 
in their new relations to each other and to the world, as a * * Treat y 
' confederation and perpetual union ' of 'free and independ- 
ent states/ but one more fact now remained to be accom- 
plished — the prosecutiou of the war to its successful termi- 
nation in a treaty of peace, by which their political inde- 
pendence dejure, as well as de facto, should be acknowledged 
on the part of Great Britain. On the third of September, 
1783, their counsels and arms having triumphed, a treaty 
of peace was signed by the commissioners of England and 
those of the United States ; the first article of which treaty 
is in these words : — ' His Britanic Majesty acknowledges 
the said United States, viz. 'New Hampshire, Massachusetts- 
Bay, Ehode Island and Providence Plantations, Connecti- 
cut, New York, New Jersey, Pennsylvania, Delaware, 
Maryland, Virginia, North Carolina, South Carolina, and 
Georgia, to be free, sovereign, and independent states: 
that he treats with them as such j and for himself, his heirs 
and successors, relinquishes all claim to the government, 
proprietary, and territorial rights of the same, and every 
part thereof/ 1 

From this brief outline of the political measures of the 
Revolution, let us proceed to consider the principles thereby 
established. 

1 Statutes at Large, Vol. viii, p. 80. 



60 POLITICAL AND CONSTITUTIONAL LAW 



(3/) OF THE PKINCIPLES ESTABLISHED BY THE 
REVOLUTION. 

I 52. Bight The first grand principle established by the American 
-of revolution. Revolution, was the sovereign right of revolution itself: 
that is, the right of a people to resume to themselves the 
powers of their political state, and re-model and re-vest 
them at will : which is, indeed, when traced to its source, 
nothing else than the natural right of any and every prin- 
cipal, to revoke the authority which he has given to his 
agent, and appoint another in his place. I do not mean 
that this right itself, which presupposes and is founded in 
the natural, inherent, and inalienable sovereignty of man, 
could possibly become of additional force or obligation by 
virtue of that or of any other revolution; but that it was 
politically recognized, asserted and proclaimed, by the 
people of the several colonies, not only in justification of 
their own proceedings, but as the natural and universal 
right of all mankind. By the declaration of independence, 
as we have already seen, this right was declared and pro- 
claimed to the world in these remarkable words : — 'We 
hold these truths to be self-evident: that all men are cre- 
ated equal; that they are endowed by their Creator with 
'. certain inalienable rights; that among these, are life, lib- 
erty, and the pursuit of happiness. That, to secure these 
rights, governments are instituted among men, deriving 
their just powers from the consent of the governed; that, 
whenever any form of government becomes destructive of 
these ends, it is the right of the people to alter or abolish 
it, and to institute a new government, laying its founda- 
tion on such principles, and organizing its powers in such 
form, as to them shall seem most likely to effect their safety 
and happiness/ 

| 53. This doctrine of the declaration of independence, — deny- 

A question, ing the sovereignty of government, and affirming the sov- 
ereignty of the people, and thus giving the key-note to the 
political creed of every true American,— has been re- 
affirmed by the people of every state in the union, in their 






OF THE UNITED STATES. 61 

organic law, or state constitution. But how, it may be 
asked, is this doctrine to be explained and applied in rela- 
tion to a union or confederacy of states ? No doubt is en- 
tertained, in this country, of the right of the people to 
resume to themselves the powers of their political state, 
and revise, remodel and revest them, at will. But speak- 
ing with reference to a union of states; what people do we 
mean? the people of each, or the people of all, of the 
states ? If the people of all, no difficulty emerges. If the 
people of each, the question of their right must be further 
considered, with reference to the organic law of the union, 
and the boundary line which naturally exists, and which 
that law must firmly establish, between the internal sov- 
ereignty of each, and the external sovereignty of all. For, 
as we have already seen, the only possibility of a union of 
states, as such, is the possibility of an organic law which 
shall determine and fix this boundary line. The consider- 
ation of the question may therefore be deferred till the 
nature of the political system at present established by our 
organic law shall come to be examined. 1 

The positive recognition in the political world, of the \ 54. Sover- 
original thirteen states, as severally sovereign, free and eignty of the 
independent, was another result of their united struggle states « 
for separate independence. 2 It is often said that 'the revolt 
was not the work of the colonies acting separately and in- 
dependently, in any assumed sovereign capacity, but of 
the people of all these local communities acting together 
through their representatives in the continental congress, 
which assembly, though revolutionary, provisional, tenta- 
tive, and loosely organized, was essentially national;' that 
' there never was, in fact, a moment's interval when the 
several states were each independent and sovereign;' that 
'the blow which severed the connection with the British 
empire, did not leave a disintegrated mass made up of 
thirteen communities now independent; it left an united 
mass, a political unit, a nation possessing the high attrib- 

^eeg 150 post. 
2 See I 49, ante. 



62 POLITICAL AND CONSTITUTIONAL LAW 

utes of sovereignty which it had just exercised/ 1 This 
doctrine is taught by Story, and by many respectable 
writers of a recent date. 2 But our brief review of the po- 
litical measures of the Revolution, leaves no question un- 
determined concerning the people by whom, or the man- 
ner in which, the political sovereignty was in fact resumed. 
It was, as we have seen, resumed by the people of each 
colony or state, acting, not as a part of some other political 
body, but as, and in the capacity of, a separate, independ- 
ent, and self-governing community. It might have been 
resumed in a different way, but the fact is, it was not. As 
to the organization of the general congress, we have also 
observed, that the people of each colony or state elected, 
by their own inherent and sovereign authority, in accord- 
ance with their own peculiar election law, and from among 
themselves (through their deputies in convention or gen- 
eral assembly), as many or as few commissioners or dele- 
gates, and clothed them with just such instructions and 
powers, as they deemed expedient; and the vote of their 
delegates in that body, upon each measure proposed, was 
given as the separate, sovereign, and independent voice of 
their colony or state. The voting in that congress was 
always by states; and not by each member as the repre- 
sentative of a portion of the people of the whole country. 
And the reason of this was, that, from the very first act of 
revolution, the people of each colony, province or state, 
had assumed to themselves the sovereign control and ex- 
clusive direction of their own affairs, and an equal voice in 
matters of common concern. 3 

\ 55. Alle- The nature of that allegiance which bound the people of 

giance. the several colonies to the British crown, has been already 

explained. 4 It was wholly of feudal origin, and founded 

solely in the sovereignty of government — the mere 'power 

of one or more to enforce such laws as he or they might 

1 See Pomeroy's Constitutional Law, \\ 48, 54. 

2 The Imperial or Absolutist theory is presented and considered in 
another place (§§102 to 109). 
3 See§H0to44, ante. 
4 See \ 30, ante. 



OP THE UNITED STATES. 63 

choose to prescribe. Hence, when the people had asserted 
and maintained their sovereignty, not a vestige of this 
feudal allegiance remained : although the term, allegiance, 
has since been retained, to denote the tie, or obligation, 
which binds the citizen to the political state, in return for 
that protection which the state affords to him, and the 
breach of which obligation, may involve the crime of trea- 
son. It is therefore important to know, in this connec- 
tion, to whom, or to what political body, the citizen was 
.afterwards bound by the new allegiance which followed 
the Revolution. This, however, is settled by the decision 
of the previous question, as to the body or bodies by 
whom the powers of government were resumed. Allegiance 
could only be due to the sovereign ; and the sovereignty 
of government being exploded, no allegiance could be due 
to any government. But the sovereignty of the people 
of each colony was affirmed and established; and there- 
fore to them, — to their sovereign will as expressed in their 
organic law, — allegiance was due. No one imagined that 
he owed allegiance to any but the colony or state of which 
he was a member. If any doubt was then entertained, it 
was settled by the continental congress ; which, by a reso- 
lution of the 24th of June, 1776, declared, that ' All per- 
sons abiding within any of the United Colonies and de- 
riving protection from the laws of the same, owed allegi- 
ance to the said laws, and were members of such colony ; 
and that all persons passing through or making a tempo- 
rary stay in any of the colonies, being entitled to the pro- 
tection of the laws, during the time of such passage, visi- 
tation or temporary stay, owed, during the same, allegiance 
thereto. 1 

1 Journals, n., 216. Curtis's 'History of the Constitution,' Vol. I, p. 
52. The three great facts which lie at the foundation of the political 
history of the United States, viz., that the political sovereignty (origin- 
ally vested in the parent state) was resumed by the people of each 
colony as a separate and sovereign body ; that all political and civil 
authority (either of the States or of the United States) was thence de- 
rived from the sovereign and independent action of the people of each ; 
and that the allegiance of the citizens thence became due to the people 
of each in their sovereign capacity as a political state ; have often been. 



64 POLITICAL AND CONSTITUTIONAL LAW 

$ 56. The Let us next inquire into the nature of that union which 
original union was first established between the States. The fact has- 
of the states. Deen noticed, that down to the time of the Eevolution, no 

the subject of judicial recognition, as supplying the basis of correct de- 
cision, in our courts of the highest resort. 

Thus in the case of Ware et al. v. Hylton, decided in the Supreme 
Court of the United States, shortly after the Revolution, and reported 
in 3 Dall. R. 199. In this case (see, of the Report, pp. 222 to 225), Chase, 
Justice, said — (the italics being those of the Report) — 'I am of opinion 
that the exclusive right of confiscating, during the war, all and every 
species of British property, within the territorial limits of Virginia, re- 
sided only in the legislature of that Commonwealth. It is worthy of 
remembrance, that delegates and representatives were elected, by the 
people of the several counties and corporations of Virginia, to meet in 
general Convention, for the purpose of framing a w&w Government, by 
the authority of the people only ; and that the said Convention met on 
the 6th of May and continued in session until the 5th of July, 1776 ; and, 
in virtue of their delegated power, established a Constitution, or form of 
Government, to regulate and determine by whom, and in what manner, the 
authority of the people of Virginia was thereafter to be executed. As the 
people of that country were the genuine source and foundation of all power 
that could be rightfully exercised within its limits ; they had therefore an 
unquestionable right to grant it to whom they pleased, and under what 
restrictions or limitations they thought proper. The people of Virginia, by 
their Constitution or fundamental law, granted and delegated all their 
Supreme civil power to a Legislature, an Executive, and a Judiciary ; the 
first to make ; the second to execute ; and the last to declare or expound, 
the laws of the Commonwealth. This abolition of the Old Govern- 
ment, and this establishment of a new one, was the highest act of power 
that any people can exercise. From the moment the people of Virginia 
exercised this power, all dependence on, and connection with Great 
Britain, absolutely and forever ceased; and no formal Declaration of In- 
dependence was necessary, although a decent respect for the opinions of 
mankind required a Declaration of the causes which impelled the separ- 
ation, and was proper to give notice of the event to the nations of 
Europe. I hold it as unquestionable, that the Legislature of Virginia, 
established, as I have stated, by the authority of the people, was forever 
thereafter invested with the supreme and sovereign power of the State, 
and with authority to make any laws in their discretion, to affect the 
lives, liberties, and property of all the citizens of that Commonwealth. 

' In June, 1776, the Convention of Virginia formally declared that 
Virginia was a free, sovereign and independent State ; and on the 4th 
of July, 1776, following, the United States, in Congress assembled, de- 
clared the Thirteen United Colonies free and independent States ; and 
that, as such, they had full power to levy war, conclude peace, etc. I 
consider this as a Declaration, not that the United Colonies jointly, in a 



Or THE UNITED STATES. 65 

political union of the people of America had ever existed, 
but that which resulted from their common allegiance to, 
and united them in, the parent state. In seasons of dan- 

collective capacity, were independent States, etc., but that each of them 
was a sovereign and independent State ; that is, that each of them had 
a right to govern itself by its own authority and its own laws, without 
any control from any other power upon earth. 

' Before these solemn acts of separation from the Crown of Great 
Britain, the war between Great Britain and the United Colonies jointly 
and separately, was a civil war ; but instantly, on that great and ever 
memorable event, the war changed its nature, and became a public 
war between independent governments ; and immediately thereupon alt* 
the rights of public war (and all the other rights of an independent na- 
tion) attached to the government of Virginia ; and all the former politi- 
cal connexion between Great Britain and Virginia, and also between 
their respective subjects, was totally dissolved ; and not only the tioo na- 
tions, but all the subjects of each, were in a state of war ; precisely as 
in the war between Great Britain and France. Vatt. Lib. 3, c. 18, s. 
292 to 295, Lib. 3, c. 5, s. 70, 72 and 73. 

'From the 4th of July. 1776, the American States were de facto, as- 
well as dejure, in the possession and actual exercise of all the rights of 
independent governments. On the 6th of February, 1778, the King of 
Trance entered into a treaty of alliance with the United States ; and 
on the 8th of October, 1782, a treaty of Amity and Commerce was con- 
cluded between the United States and the States G-eneral of the United 
Provinces. I have ever considered it as the established doctrine of the 
United States, that their independence originated from, and commenced 
with, the declaration of Congress, on the 4th of July, 1776 ; and that 
no other period can be fixed on for its commencement, and that all laws 
made by the legislatures of the several States, after the declaration of 
independence, were the laws of sovereign and independent governments/ 

That the foregoing views of Judge Chase were in perfect accord with 
those of the continental congress, is conclusively shown by the second 
of the Articles of Confederation ; which provided that, ' Each state re- 
tains its sovereignty, freedom and independence,' etc. See \ 50, ante. 

In Mcllvaine v. Coxe, (2 Pet. Cond. K. 86,) decided in 1805, the Su- 
preme Court of the United States held, that on the 4th of October, 1776 r 
the state of New Jersey was a completely sovereign and independent 
state : that citizenship and allegiance belonged to the states, severally 
and respectively. 

In Gibbons v. Ogden, (9 "Wheat. 203 ; 5 Pet. Cond. R. 565,) decided by 
the same court in 1824, Marshall, Chief Justice, said : ' As preliminary 
to the very able discussion of the Constitution which we have heard 
from the bar, and as having some influence on its construction, reference 
has been made to the political situation of these States anterior to its 



66 POLITICAL AND CONSTITUTIONAL LAW 

ger, some of the colonies had been accustomed to form as- 
sociations, more or less extensive, with their immediate 
neighbors. A notable effort indeed was made, in 1754, to 
establish a common council of all, which should consist of 
delegates triennially chosen by the provincial assembly of 
each, and a president general appointed by the crown. 
But the rjroject was sanctioned neither by the king nor 
by any of the colonial assemblies. The colonies were 
destined for a long time to remain, in relation to each 
other, separate and alien commonwealths, emulous of each 
other in obedience to the parent state, and in devotion to 
her interests, but jealous of each other's prosperity, and 
divided by policy, institutions, prejudice and manners. 1 
Before the articles of confederation were signed, it was 
never considered that a citizen of one state was for any 

formation. It has been said that they were Sovereign, were completely- 
Independent, and were connected with each other only by a league. 
This is true.' 

Again, in Martin et al. v. "Waddell, (16 Pet. K. 410, 416,) decided by the 
same court in 1842, it was held, that ' When the Eevolution took place, 

THE PEOPLE OF EACH STATE BECAME THEMSELVES SOVEREIGN;' and that 

* When the people of New Jersey took possession of the reins of gov- 
ernment, and took into their own hands the powers of sovereignty, the 
prerogatives and regalities which before belonged to either the crown or 
the parliament, became immediately and rightfully vested in the State.' 

Our political history and judicial reports abound with authorities 
upon these points ; and the constitutions of the several states, even at 
this day, are of themselves incontestible proofs, and, I trust, imperisha- 
ble monuments, of the sovereignty of 'the people' of each state: 
which sovereignty they are designed to authoritatively express, in the 
most deliberate, formal and solemn manner, as the original organic law 
of each, in which the political state, and the government thereof, have 
their only foundation and support. 

The same is true, indeed, of the constitution of the United States : 
which, as we shall hereafter see, was ordained and established by the 
people of the United States, not as one political state, but as the peo- 
ple of each of the States respectively, acting by and for themselves as a 
sovereign State, and in their sovereign political capacity as such state. 
And, therefore, ' The Constitution of the United States, and every ar- 
ticle and clause in it, is a part of the law of every State in the Union, 
and is the paramount law:' as was held by the U. S. Supreme Court in 
the case of Prigg v. The Commonwealth of Pennsylvania. (16 Pet. 628.) 

1 1 Kent's Com. * 204-5. 



OF THE UNITED STATES. 67 

one purpose a citizen of another. He was, for all substan- 
tial purposes, as a foreigner to its forensic jurisprudence. 
If vigorous law had been enforced, perhaps he might have 
been deemed an alien, without an express provision of the 
state to save him. 1 

But when the war for independence had actually com- \ 57. Nature 
menced, the importance of a confederacy of the colonies and defects of 
was felt and acknowledged by all. Articles of confedera- the confeder " 
tion were accordingly prepared, submitted to the several 
state legislatures, and after encountering considerable op- 
position, finally approved and sanctioned by their author- 
ity. 2 

The parties to these articles were, as we have seen, sov- 
ereign and independent political communities; each of 
them possessing, within itself, all the powers of legislation 
and government over its own citizens, which any political 
society can possess. 3 After stating that 'The style of this 
Confederacy shall be, "The United States of America, " 
these articles expressly declare, that 'Each State retains 
its sovereignty, freedom and independence, and every 
power, jurisdiction and right, which is not by this Confed- 
eration expressly delegated to the United States in con- 
gress assembled/ 4 Hence the nature of that union of 
the states, which at first subsisted, is easily perceived. 
Whatever the powers which were delegated to it, they 
could be exercised only by 'The United States in congress 
assembled.' The legislative, judicial, and executive powers, 
were all of them lodged in a single body. Moreover, 
whatever the laws that were passed, or the judgments 
given, the executive was powerless to enforce them, either 
as against a particular state, or as against its individual 
members. Such were the grave defects of the original 
articles of confederation. 5 The powers which were grant- 

1 Per Iredell, Justice, in Penhallow et at. v. Doane's Adm. 3 Dall. 92. 

2 See £ 50, ante. 

3 Curtis's Hist, of the Const, of the U. S., Yol. i, p. 142. 

4 See Art. II, under \ 50, ante. 

5 ' The great and radical vice, in the construction of the existing con- 
federation, is in the principle of legislation for states or govern- 



68 POLITICAL AND CONSTITUTIONAL LAW 

ed might perhaps have proved competent for all the pur- 
poses of the union, had they been properly distributed 
among the departments of a well-balanced government, 
and been framed to act upon the citizens of the states, in- 
stead of the states themselves in their several political 
capacities as such. But it was left to the government of 
each state to enforce the laws and resolutions of congress ; 
those even upon which depended the maintanance of the 
federal authority. Hence the necessity of that revision of 
the articles of confederation, which was accomplished by 
the framers of the federal constitution of 1789. 

§ 58. Prm- It has now been seen, that the great political principles 

ciples of the established by the American Ee volution, were — first, the 

, right of political revolution itself; at least as against any 

summed up. L , . ; & J 

government resting, not in the common consent of the 

governed, but merely in its 'power to rule ) secondly, the 
sovereignty of the people of each state; finally, the sov- 
ereignty of the states united, — the principle of their union 
being the same with that upon which the individual mem- 
bers of each state are united. This will be fully explained 
when we come to consider the nature of our present polit- 
ical system, as established by the state constitutions and 
the constitution of the United States. 

In conclusion of this inquiry, it will be proper to briefly 
notice the change, if any, which the Eevolution of 1776, 
caused or produced with respect to the common law. 

1 59. Nature That system of law, which the earlier settlers of this 
of the com- 
mon law. mknts, in their corporate or collective capacities, and as contradis- 
tinguished from the individuals of whom they consist. Though this 
principle does not run through all the powers delegated to the union ; 
yet it pervades and governs those on which the efficacy of the rest de- 
pends ; except, as to the rule of apportionment, the United States have 
an indefinite direction to make requisitions for men and money; but 
they have no authority to raise either, by regulations extending to the 
individual citizens of America. The consequence is, that though in 
theory their resolutions concerning those objects are laws, constitution- 
ally binding on the members of the union; yet in practice, they are 
mere recommendations, which the states observe or disregard at their 
option.' Alexander Hamilton, in No. 15 of The Federalist, pp. 67-68. 



OF THE UNITED STATES. 69 

country brought with them from England, and which de- 
rives its obligation not from legislative enactments, but from 
universal custom and immemorial usage, and which is the 
fountain of American jurisprudence, is distinguished and 
known as the common law. It consists of ancient maxims 
and customs, embodying the wisdom and experience of 
ages, and forming a system that naturally keeps pace with 
the habits and wants of the current times. 1 Many are the 
names in our books by which it is distinguished. To dis- 
tinguish it from statute law, it is sometimes called the un- 
written law, lex non scripta ; < not meaning that it is at 
present merely oral, or communicated from the former 
ages to the present solely by word of mouth; for the 
monuments and evidences of our legal customs are now 
contained in the records of the several courts of justice, 
in books of reports and judicial decisions, and in the trea- 
tises of learned sages of the profession, preserved and 
handed down to us from the times of highest antiquity ; 
but these parts of our law are styled leges non scripta?, be- 
cause their original institution and authority are not set 
down in writing, as acts of the legislature are, but they 
receive their binding power, and the force of laws, by 
long and immemorial usage, and by their universal recep- 
tion throughout the land/ 2 

The Eoman law was also divided, as well too the Gre- 
cian, into written and unwritten. Nor, says Justinian, is 
it an inelegant division of the law, into written and un- 
written ; which seems to have taken rise from the peculiar 
customs of the Athenians and Lacedemonians. For the 
Lacedemonians trusted chiefly to memory, for the preser- 
vation of their laws; bat the laws of the Athenians were 
committed to writing. 3 

The common law of England, and also parts of the stat- * 60> q 0Rw 
ute law, being the law of the parent state, formed the basis firmation of 

the common 
1 1 Casey, 176. law# 

2 1 Blackst. Comm. 63-64. Hale's Hist. Com. Law, 23. 

3 Just. Inst. 1, 2, 10. For a similar reason of this division in later 
times, see Blackst. Comm. B. I., 63— B. IY. 408. 






70 POLITICAL AND CONSTITUTIONAL LAW 

of jurisprudence in each of the colonies, prior to the Ameri- 
can Eevolution. But political revolutions dissolve the ob- 
ligation of political laws. And therefore the principles 
and doctrines of the common law, as well as of the statute 
law of England, so far as they concerned the political 
relations of the people of this country, were wholly an- 
nulled and swept away by the Eevolution, when the colo- 
nies severally resumed to themselves the sovereignty of 
the political state. However, by much the greater body 
of the common law of England, which in no way concerned 
our political relations, but furnished the rule of our con- 
duct as members of civil society, was afterward sanctioned 
and confirmed: either by the people themselves, in the- 
framing and enactment of their state constitutions : or else 
by their state legislatures, in the exercise of powers which 
were delegated to them by those constitutions. Hence 
a general and primary criterion by which to determine 
whether this or that doctrine of the law of England, as 
held before the American Eevolution, has survived that 
event, and remained in force as a part of our own common 
law. On the one hand, at least, it may safely be assumed,, 
that the doctrines and rules of the English law, so far as 
they relate to the political state, the powers of govern- 
ment, or the political obligations of the people, form no 
part of the law of this country. For these, the powers of 
government, whether state or federal, and the political 
obligations of the people, are founded wholly in our writ- 
ten constitutions. Our doctrine of allegiance, for example,, 
could not be derived from the old common law, unless we 
should wholly ignore the American Eevolution, and still 
profess our subjection to the crown of Great Britain. 1 

\ 61. By and So far as they relate to civil rights and remedies, and 
for whom con- 
firmed. J I do not forget that cases of treason (which, however, the United 
States could not punish) were tried in this country, before our constitu- 
tional governments were fairly established, seemingty upon authority of 
our common law, hut in reality, by no other right than that of revolu- 
tion. It was never questioned that treason could be committed against 
each state, or that each state as a sovereign community had power to 
define and punish the offence. 



OP THE UNITED STATES. 71 

the definition and punishment of crimes and misdemeanors, 
the laws of the colonies in force before the Eevolution, in- 
cluding not only the common law of England but also 
English statutes in amendment thereof/ were generally 
retained and confirmed by authority of the people, as form- 
ing the basis of the common law — of the several states ; 
we cannot say — of the United States: because, first ; that 
law alone which is common to the United States, but which 
is not 'called 'the common law/ is founded solely in the 
organic law of the union, the federal constitution, and is 
wholly composed of that constitution and the laws enacted 
and treaties made in pursuance thereof: secondly j neither 
by the articles of confederation, nor by the present con- 
stitution of the union, was the common law ever adopted 
or confirmed, either as the law of the several states, or as 
the law of the United States ; nor was ever the govern- 
ment of the United States, or any of its departments, legis- 
lative, judicial, or executive, invested with power to adopt, 
confirm, or administer the same. 2 

The great characteristic which distinguishes our common g 62. Its 
law from all other laws and systems of law, and in which peculiar ge- 
alone consists its peculiar genius and excellence, is, not nius aD< * ex ~ 
that its rules are those of eternal and immutable justice C3 ence ' 
(for rules of this nature can never be peculiar to any par- 
ticular body of law), but that it is founded in the principle 
that a usage or custom, maxim or statute, so obviously rea- 
sonable, convenient and just, as to have been sanctioned 

1 See 1 Bish. Crim. Law, p. 15, note 4. 

2 If there were any such law, as ' the common law of the United States/ 
we should wish to inquire, with Mr. Justice Chase (in 2 Dall. 395), ' Is it the 
common law entire, as it exists in England; or modified, as it exists in 
some of the states ; and of the various modifications, which are we to 
select, the system of Georgia or New Hampshire, of Pennsylvania or 
Connecticut ?' It is, however, a settled point, that the courts of the 
United States are clothed with no common law jurisdiction whatever, 
and that all the powers they possess must be referred to the grants of 
the constitution, or to these grants and laws of congress passed in pur- 
suance thereof. Pomeroy's Constitutional Law, \\ 739 and 759, and 
cases there cited. 



72 POLITICAL AND CONSTITUTIONAL LAW 

and approved by every man's reason and experience, and 
retained and continued from generation to generation, 
though the record and history of its origin have long been 
lost, shall be and remain of force and effect as part of the 
law of the land. This is the great and fundamental prin- 
ciple of our common law : a principle which, attracting to 
itself the wisdom and experience of each successive age of 
civilized man, descends from generation to generation, as 
an ancient inheritance, adorned and improved from the re- 
motest times. 



{2d) OF POLITICAL SOVEREIGNTY: AND HEREIN 

(1 e a) OF THE LEGISLATIVE POWER 

(If a) OE THE PEOPLE. 

| 69. Orig- rp HE principle of SOVEREIGNTY, when traced to its orig-i- 
ma principle na j gource [ Q found, as we have seen, in the natural right 
of sovereign- ' . 

t of self-government : and this we have defined to be, in 

the case of an individual, the right of a man to govern 
himself, in relation to matters peculiarly and immediately 
affecting himself, according to his judgment of what is 
right ; in relation to things in which others with him are 
equally concerned, by his agreements with them; in the 
case of a people, the right of that people to govern them- 
selves, in their relations to each other, by laws expressive 
of their common will and consent; in their relations to 
other political states, by their compacts or treaties with 
them. 

Society is naturally and necessarily formed, not of a 
single consolidated mass of flesh and blood, but of many 
and different natural individuals, each of whom has his 
own distinct organization and separate existence, and con- 
sequently must be considered both in relation to himself, 
and in relation to others, his equals. The duties and rights 
of each must therefore be distinguished, as either internal 
and absolute, or external and relative ; and this in accord- 



OP THE UNITED STATES. 73 

ance with that immutable boundary line which nature her- 
self has established (but which she has left for man to per- 
ceive and define), between the particular jurisdiction of 
^ach individual, within the domain of his absolute rights, 
-and the general and common jurisdiction of all the mem- 
bers of society, within the sphere of their relative rights. 
To make this great truth plain, was the principal object of 
a former part of our work. Our business here is to apply 
it correctly to political states. 

Now when a society or people, in the exercise of their \ 70. Source 
natural sovereignty or right of self-government, have ana nature of 
agreed and united upon an organic law for the common P olltlcal sov " 
government of all, and so establish their political state, 
there results from their union a political power ; and this 
political power, as thence determined and vested by their 
organic law, is what we mean by the political sovereignty, 

A clear understanding of the difference between the 
natural and the political sovereignty, is of the first im- 
portance in the study of our system of organic law. 

Natural sovereignty is that which belongs to all man- 
kind, without distinction, and to no one man, nation, peo- 
ple, or body of men, more than to another. Political 
sovereignty is that which results from the institution of 
political society, which is, therefore, as various in forms as 
the constitutions of political states, and is vested in each, 
political state, according to its constitution, exclusively 
for itself alone, as a separate sovereign community. 

On primary grounds, all men being equal in right, the 
opinion or judgment of one is of equal authority with 
that of any other; and therefore all are equally entitled 
to decide upon matters of common concern. In this con- 
sists the natural sovereignty of men as members of society 
(the original anarchy of the state of nature). But the 
very institution of the political state, must put an end to 
that state of things. A political union of individuals is 
clearly impossible unless on the basis of an organic law 
which determines and fixes the qualifications of the mem- 
bers who are to exercise the political power, and which 



74 POLITICAL AND CONSTITUTIONAL LAW 

therefore discriminates between them concerning their 
capacity for political rights. The natural sovereignty of 
human society can find expression only in the institution 
of political states. It cannot cease to exist, so long as 
man himself exists, but as finding its only expression in 
and through such organizations, it undergoes a change of 
character, and becomes political sovereignty. As such, in 
all free states, it resides in those who are clothed with the 
right of suffrage by the organic law. These act through- 
out by their own authority, and acknowledge no superior; 
whether they act in the name of ' the people," in the name 
of the voters or electors, or in that of the state. In fact,, 
not all mankind are equally competent to give expression 
to the natural sovereignty. Whoever has ears to hear 
and a tongue to speak, will exert, as of course, his share 
of influence on all the deliberations of the sovereign 
court of last resort. But the sovereign right to give the 
legitimate and all-controlling expression to the natural 
sovereignty, can only reside in such as possess the qualifi- 
cations required by the organic law or compact of society. 
Upon these, therefore, the preservation and maintenance 
of our liberties must finally depend. 

In the exercise of their natural sovereignty, all man- 
kind were originally free, and still are free, to form them- 
selves into a single political state, or into a variety of in- 
dependent communities. So of the people of the colonies 
at the time of the Eevolution. In resuming to themselves 
the powers of government, they could have wholly aban- 
doned their several organizations as separate political 
communities or states, and, acting as one united people 
and in virtue of a common election law, have formed 
themselves into one political state. So yet the people of 
this country may do, in virtue of their natural, original 
and inherent sovereignty. But what they may do in vir- 
tue of their political sovereignty, can only be determined 
by reference to their several political constitutions. 

§71. The It is a generally received political maxim, that in every 
supreme pow- community or state, there must somewhere exist an abso- 



OF THE UNITED STATES. 75 

lute, unlimited, and uncontrollable power, in which the 
jura summi imperii or rights of sovereignty reside ; and of 
our own political law, it is the primary and fundamental 
doctrine, that this unlimited and uncontrollable power is 
in 'the people' themselves; whose sovereign will, as from 
time to time expressed in their written constitutions, is the 
only established criterion of right and wrong, to which all 
men alike, both governing and governed, are in all things 
bound to conform. 

It is therefore only of this power of c the people' that wo 
in this country can affirm, what Coke and after him Black- 
stone have said, of the power of the British Parliament; 
that it is so transcendent and absolute, that it cannot be 
confined, either for causes or persons, within any bounds: 
that it hath sovereign and uncontrollable authority, in the 
making, confirming, enlarging, restraining, abrogating, re- 
pealing, reviving, and expounding of laws, concerning 
matters of all possible denominations, ecclesiastical or tem- 
poral, civil, military, maritime, or criminal. 1 But of this, 
the natural, inherent, and uncontrollable power of the 
people, it may truly be said, that it can regulate or new- 
model the form of government itself; as in fact it did by 
the Eevolution of 1776: it can alter the laws relating to 
religion and religious worship; as also it formerly did in 
some of the states : it can change and create afresh even 
the organic law of the union ; as it did in 1789, upon the 
revision of the articles of confederation and establishment 
of the constitution of the United States. It can, in short, 
do everything that is not naturally impossible, and what it 
does, no other authority on earth can undo. 2 

There is, however, a natural limit to the will of mere 
majorities, as will clearly appear. 

The supreme power of the state,. is of a three-fold na- g 72. Distri- 
ture and character: legislative, judicial, and executive; its bution of the 
office being, to make and prescribe, expound and apply, subject, 
and maintain and enforce, the law of the land. 

1 See 4 Inst. 36 ; 1 Bl. Com. 160, 161. 

2 Compare 1 Blackst. Com. 161. 



76 POLITICAL AND CONSTITUTIONAL LAW 

The "power to make and prescribe the law, is also, in our 
system, of three distinct kinds: namely, first, that of the 
people themselves, in the exercise of their paramount 
sovereignty; secondly, that of the state legislatures re- 
spectively; and thirdly, that of the federal legislature : 
the two last named, being representative and subordinate, 
as existing only in virtue of the first. 1 

Our attention will here be confined to the legislative 
power of the people. And this, I conceive, should be con- 
sidered in relation to its legislative acts; that is to say, in 
relation to, first, the establishment of the state consti- 

1 A distinguished law-writer has said, ' It has never been questioned 
that the American legislatures have the same unlimited power in regard 
to legislation which resides in the British Parliament, except where they 
are restrained by written constitutions.' (See Am. Law Keg. for July, 
1868, p. 521.) This is true in the sense in which intended. But it is not 
understood that our constitutions, being organic laws, were simply de- 
signed to restrain powers. The purpose of our organic laws, is to 
originate and delegate powers. Strictly speaking, there is no essential 
resemblance between the powers of the British Parliament, and those of 
any American Legislature. The only power in this country, equal to 
that of the British Legislature, is the inherent, inalienable, and para- 
mount sovereignty of ' the people : ' which could never be confided to 
any legislature, without a total subversion of the very foundation of our 
system. The British constitution is the will of Parliament. 'In Eng- 
land, the authority of Parliament runs without limits, and rises above 
control. It is difficult to say what the constitution of England is ; it lies 
entirely at the mercy of Parliament ; it bends to every governmental ex- 
igency ; it varies and is blown about by every breeze of legislative humor 
or political caprice. In America, the case is widely different. Every 
state in the union has its constitution reduced to written exactitude and 
precision. What is a constitution ? It is the form of government de- 
lineated by the mighty hand of the people, in which certain first princi- 
ples or fundamental laws are established. The constitution is certain 
and fixed ; it contains the paramount will of the people, and is the su- 
preme law of the land ; it is paramount to the power of the legislature, 
and can be revoked or altered only by the authority that made it. The 
life-giving principle and the death-doing stroke must proceed from the 
same hand. What are the legislatures ? Creatures of the constitutions ; 
they owe their existence to the constitutions ; they derive their powers 
from the constitutions ; the constitutions are their commissions ; and 
therefore all their acts must be conformable to them, or else they will 
be void. A constitution is the work of the people themselves, in their 
original, sovereign, and unlimited capacity. A law is the work or will 
of the legislature, in their derivative and subordinate capacity. The 



OP THE UNITED STATES. 77 

tutions; secondly, the establishment of the constitution 
or the United States; and thirdly, the American poli- 
tical system as so constituted. First, then, 



(19 a) OF THE ESTABLISHMENT OF THE STATE CONSTI- * 73 Mature 
TUTIONS. of s ^ te CQn ^ 

_. stitutions. 

13y a state constitution, we mean an organic law, or- 
dained and established by the sovereign authority, or 
supreme power, of a state, for the government thereof. 
This organic law, however, being founded in common con- 
sent, must partake of the nature of a social compact, 'by 
which/ in the language of the constitution of Massachusetts, 
'the whole people covenants with each citizen, and each 
citizen with the whole people, that all shall be governed 
by certain laws for the common good;' or rather, by such 
their constitution. 

Every political state, indeed, is founded (theoretically 
at least) in what is often called 'the original compact of 
society/ Of which Blackstone speaks in these words: 
'And this is what we mean by the original compact of 
society; which, though perhaps in no instance it has ever 
been formally expressed at the first institution of a state, 
yet in nature and reason must always be understood and 
implied, in the very act of associating together: namely, 
that the whole should protect all its parts, and that every 
part should pay obedience to the will of the whole, or, in 
other words, that the community should guard the right 
of each individual member, and that (in return for this 
protection) each individual should submit to the laws of 
the community; without which submission of all it was 
impossible that protection should be certainly extended to 
any/ 1 Which passage affords us occasion to remark, that 



one is the work of the creator, and the other, of the creature. The con- 
stitution fixes limits to the exercise of legislative authority, and pre- 
scribes the orbit within which it must move. In short, the constitution 
is the sun of the political system, around which, the legislative, execu- 
tive, and judicial bodies, must revolve.' {Per Justice Patterson, 2 Dall. 
E. 307 £ seq.) 
1 1 Blackst. Com. 47-48. 



78 POLITICAL AND CONSTITUTIONAL LAW 

down to the time when Blackstone wrote, 1 no one instance 
of a political state originally founded in a written consti- 
tution of government, ordained and established by the 
people themselves, had ever been known. It has fre- 
quently been remarked, ' that it seems to have been re- 
served to the people of this country to decide, by their 
conduct and example, the important question, whether 
societies of men are really capable or not, of establishing 
good government from reflection and choice, or whether 
they are forever destined to depend for their political con- 
stitutions, on accident and force/ 2 
\ 74. Their 
original form- j n reviewing the political measures of the several colo- 
ation. nies, by which they resumed the powers of government, 3 

we noticed that prior to the declaration of independence, 
some of the states, New Jersey, Virginia, and South Caro- 
lina, had actually formed and established their state con- 
stitutions. So, we may add, had Connecticut and Ehode 
Island: whose charters (reserving nothing to the crown 
but a forfeited allegiance) were severally retained by them 
as their original codes of organic law. 4 Before the close 
of the year, 1776, Pennsylvania, Delaware, Maryland, and 
North Carolina had also completed the work of reorgani- 
zation, and established their constitutions; New York and 
Georgia following in 1777; Massachusetts, in 1780, and 
New Hampshire in 1784. 5 Besides these, the original 
thirteen states, by whom the federal union was formed 
(as we have seen), and afterward dissolved and re-formed 
(as we shall see), twenty-four other political communities 
have since emerged from a sort of dependent or colonial 
condition, framed for themselves their several state consti- 
tutions, and thence (in conformity with a provision of the 
federal constitution) been severally admitted as members 

1 His 'Commentaries' were completed in 1769. 

2 The Federalist, No. 1. 3 \ 43, ante. 4 See \ 27, ante. 

5 It seems that as early as the 15th of June, 1776, New Hampshire 
made a sort of declaration of independence, and, in December of the 
same year, framed a temporary form of government. But the first 
regular constitution of that state was adopted in 1784 ; and this was 
revised in convention in 1792. 



OF THE UNITED STATES. 79 

of the union on an equal footing with the original states. 
The union is therefore now composed of thirty-seven co- 
equal and co-independent members; each of whom is in- 
ternally governed in accordance with its own organic law. 

Yitally essential to the existence of every political com- \ 75. Their 
munity, as well as to each of the individual members of " ecessit y> ob- 
which it is composed, is the sovereign right of internal ] 
self-government. Nor can a republic or confederacy of 
€0-equal communities, any more than a natural society of 
free individuals, continue to exist, if this right be en- 
dangered, obstructed or rendered insecure. It was there- 
fore necessary for each and every state of the union, to 
provide and establish a political constitution of its own, an 
organic law, which, as expressive of its sovereign will, 
should furnish the ultimate rule of right in the relations of 
the state to its several members, and the relations of these 
to one another, as citizens of the state. 

The prominent features of the state constitutions, should 
here be noticed; and these I shall endeavor to exhibit by 
means of a general form, which may serve to convey an 
idea of the objects and character of each. 



GENERAL IDEA AND FORM OE A STATE CONSTITUTION. 
PREAMBLE. 

The end of the institution, maintenance, and administra- 
tion of government, is to secure the existence of the body 
politic, to protect it, and to furnish the individuals who 
compose it with the power of enjoying, in safety and tran- 
quility, their natural rights and the blessings of life : and 
whenever these great objects are not obtained, the people 
have a right to alter the government, and to take measures 
necessary for their safety, prosperity, and happiness. 

The body politic is formed by a voluntary association of 
individuals. It is a social compact, by which the whole 
people covenants with each citizen, and each citizen with 



80 POLITICAL AND CONSTITUTIONAL LAW 

the whole people, that all shall be governed by certain 
laws for the common good. It is the duty of the people,, 
therefore, in framing a constitution of government, to pro- 
vide for an equitable mode of making laws, as well as for 
an impartial interpretation and a faithful execution of 
them ; that every man may, at all times, find his security 
in them. 

We, therefore, the people of , acknowledg- 
ing with grateful hearts the goodness of the Great Legis- 
lator of the Universe, in affording us, in the course of his- 
Providence, an opportunity, deliberately and peaceably, 
without fraud, violence, or surprise, of entering into an 
original, explicit, and solemn compact with each other; 
and of forming a new Constitution of civil government, for 
ourselves and posterity; and devoutly imploring his direc- 
tion in so interesting a design, do agree upon, ordain, and 
establish, the following declaration of rights and frame of 
government, as the Constitution of the Commonwealth 
of } 

DECLARATION OR BILL OF RIGHTS. 

1. All men are born free and equal, and have certain 
natural, inherent, and inalienable rights: among which 
may be reckoned, the right of enjoying and defending their 
lives and liberties; that of acquiring, possessing, and pro- 
tecting property; and that of seeking and obtaining hap- 
piness. 2 

2. All power is inherent in the people. All free gov- 
ernments are founded on their authority, and instituted 

1 This Preamble, of the constitution of Massachusetts, is fuller, and 
perhaps more befitting the occasion, than any other. The recognition 
of the Supreme Being, cannot be objected to as sectarian, and must, I 
think, seem eminently proper; though in all forms excluded from many 
of our state constitutions, as well as from the constitution of the United 
States. 

2 Const. Mass. Pt. i, Art. 1. This is substantially the common lan- 
guage of all our state constitutions — borrowed from that of the Declara- 
tion of Independence, or, it may be, from that of the Virginia Bill of 
Eights of June 12, 1776, prefixed to the constitution of that common- 
wealth. 



OF THE UNITED STATES. 81 

for their benefit : they therefore have, at all times, an in- 
alienable and indefeasible right to institute government, 
and to alter, reform, or totally change the same, in such 
manner as they may think proper. 1 

3. The people of this commonwealth have the sole and 
exclusive right of governing themselves, as a free, sov- 
ereign, and independent state : and do, and forever here- 
after shall, exercise and enjoy every power, jurisdiction,, 
and right, which is not, or may not hereafter be, by them, 
expressly delegated to the United States of America. 2 

4. All power residing originally in, and being derived 
from the people, all the magistrates and officers of gov- 
ernment, are their substitutes and agents, and are at all 
times accountable to them. 3 

5. In order to prevent such persons as may be invested 
with authority from becoming oppressors, the people have 
a right, at such periods and in such manner as they shall 
establish by the frame of government, to cause their public 
officers to return to private life, and to fill up vacant places 
by certain and regular elections and appointments. 4 

6. Elections shall be free and equal. 5 

7. Trial by jury shall be as heretofore, and the right 
thereof remain inviolate. 6 

8. The free communication of thoughts and opinions is 
one of the invaluable rights of man; and every citizen 
may freely speak, write, and publish his sentiments, on 
any subject, being responsible for the abuse of this liberty. 
No law shall ever be passed regulating or restraining the 
freedom of the press ; and, in prosecutions for any publi- 
cation respecting the ofiicial conduct of men in public 

1 All the state constitutions are substantially at one in this doctrine. 
It is perhaps remarkable, that not one of them says, in the manner pro- 
vided by this constitution. 

2 Const. Mass. Pt. i, 4 ; New Hamp. Pt. I, 7. Clauses clearly presup- 
posing and implying the same are common to all. 

3 Const. N. H. Pt. i, 8; Mass. Pt. I, 5; Virginia Bill of Rights of June 
12, '76, 2. In one form or other, common to all. 

4 Const. Mass. Pt. I, 8. 

5 Universally declared. 

6 Substantially declared by all. 

P 



02 POLITICAL AND CONSTITUTIONAL LAW 

office, or the qualifications of those who are candidates for 
the suffrages of the people, or where the matter published 
is proper for public information, the truth thereof may 
be given in evidence; and in all indictments for libels, the 
jury, after having received the direction of the court, 
shall have a right to determine, at their discretion, the law 
and the fact. 1 

9. The freedom of deliberation, speech, and debate, in 
either house of the legislature, is so essential to the rights 
of the people, that it cannot be the foundation of any ac- 
tion, complaint, or prosecution, in any other court or place 
whatsoever. 2 

10. Neither slavery nor involuntary servitude shall ex- 
ist in this state ; except as a punishment for crime whereof 
a person shall have been duly convicted. 3 

11. Such parts of the common law, and of the acts of the 
legislature of the colony, as together did form the law 
thereof on the nineteenth day of April, one thousand seven 
hundred and seventy-five, and the resolutions of the con- 
gress of the colony, and of the convention of the state, in 
force on the twentieth day of April, one thousand seven 
hundred and seventy-seven, which have not since expired, 
or been repealed or altered; and such acts of the legisla- 
ture of this state as are now in force, shall be and continue 
the law of this state, subject to such alterations as the leg- 
islature shall make concerning the same. But all such 
parts of the common law, and such of the said acts, or 
parts thereof, as are repugnant to this Constitution, are 
hereby abrogated. 4 

12. The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches 

1 Const. Maine, Art. I, 4 ; K. I. Art. I, 20 ; Conn. Art. i, 5, 6, 7 ; K 
Y. Art. i, 8 ; N. J. Art. i, 5; Penna. Art. rx, 7; Del. Art. i, 5. Free- 
dom of speech and of the press is fully secured by all the constitu- 
tions ; but not so fully in some others as in these. 

2 Const. N. H. Pt. i, 30 ; Verm. Ch. I, 14; Mass. Pt. i, 21. The doc- 
irine is general throughout the states. 

3 In substance, universal. 

4 Const. N. Y. Art. i, 17. See Const. Md. Art. in, Declaration of 
Eights. Generally omitted and provided for by statute. 



OF THE UNITED STATES. 83 

and seizures, shall not be violated; and no warrant to 
search any place, or to seize any person or things, shall 
issue but upon probable cause, supported by oath or affirm- 
ation, and particularly describing the place to be searched, 
and the person, papers, or things to be seized. 1 

13. In all criminal prosecutions, the accused hath a right 
to be heard by himself and his counsel, to demand the na- 
ture and cause of the accusation against him, to meet the 
witnesses face to face, to have compulsory process for ob- 
taining witnesses in his favor, and in prosecutions by in- 
dictment or information, to a speedy trial by an impartial 
jury of twelve men of his vicinage. 2 

14. ~No one shall be compelled to give evidence against 
himself; or be deprived of his life, liberty or property, 
unless by the judgment of his peers or the law of the land. 3 

15. No person shall for any indictable offence, be pro- 
ceeded against criminally by information ; except in cases 
arising in the land and naval forces, or in the militia when 
in actual service in time of war or public danger ; or by 
leave of the court, for oppression and misdemeanor in 
office. 4 

16. ~No person shall be held to answer for a criminal 
offence, unless on the presentment or indictment of a grand 
jury, except in cases of impeachment, or in cases cogniz- 
able by justices of the peace, or arising in the army or 
navy, or in the militia, when in actual service in time of 
war or public danger. 5 

17. No person for the same offence shall be twice put in 
jeopardy of life or limb. 6 

18. All prisoners shall, before conviction, be bailable by 
sufficient sureties, except for offences punishable by death, 

1 Contained in all the constitutions. 

2 Const. Penna. Art. ix, 9; Virginia Bill of Eights of June 12, '76 
Much the same language is used in all. 

3 The same in all. 

4 Const. Penna. ix, 10. 

5 Substantially the same in all. 

6 The same in all. 



84 POLITICAL AND CONSTITUTIONAL LAW 

or imprisonment for life, where the proof is evident, or 
the presumption great. 1 

19. Every man being presumed innocent until he is 
pronounced guilty by the law, no act of severity which is 
not necessary to secure an accused person, shall be per- 
mitted. 2 

20. Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel nor unusual punishments inflicted.* 

21. No person shall be imprisoned for debt in any action,. 
or on any judgment, founded upon contract, unless in cases 
of fraud. 4 

22. All courts shall be open, and every man, for an in- 
jury done him in his person, property, or reputation, shall 
have remedy by due course of law, and right and justice 
administered, without sale, denial, or delay. 5 

23. Private property shall not be taken for public use 
without just compensation. 6 

24. No power of suspending laws shall be exercised, 
unless by the legislature, or its authority. 7 

25. The privilege of the writ of habeas corpus shall not 
be suspended, unless when, in cases of rebellion or inva- 
sion, the public safety may require it. 8 

26. No commission of oyer and terminer or jail delivery 
shall be issued. 9 

27. No subsidy, charge, tax, import or duties, shall be 
established, fixed, laid, or levied, under any pretext what- 

1 The words ' or imprisonment for life ' are, in many of the constitu- 
tions, omitted. Upon the abolition of capital punishment, murder 
might thus become a bailable offence in some of the states. The pro- 
vision, in other respects, is universal. 

2 Quite general but not universal. 

3 Universal. 

* Found in some of the constitutions, but more generally provided by 
statute law. 

5 A very general provision ; but often omitted. 

6 Universal. 

7 Substantially the same in all. 

8 Universal. In some states, nor without the authority of the legisla- 
ture : which I presume is implied when not expressed. 

9 Const. Penna. ix, 15. 



OP THE UNITED STATES. 85 

ever, without the consent of the people, or their repre- 
sentatives in the legislature. 1 

28. The right of the people to bear arms, in defence of 
themselves and the state, shall never be questioned. 2 

29. A well regulated militia, composed of the body of 
the people, trained to arms, is the proper, natural and safe 
defence of a free state. 3 Standing armies being danger- 
ous to liberty, no standing army shall be kept up without 
the consent of the legislature; and the military shall, in 
all cases, and at all times, be in strict subordination to the 
civil power. 4 

30. No soldier shall, in time of peace, be quartered in 
any house, without the consent of the owner, nor in time 
of war, but in a manner to be prescribed by law. 5 

31. Treason against the state shall consist only in levy- 
ing war against it, or in adhering to its enemies, giving 
them aid and comfort. No person shall be convicted of 
treason unless on the testimony of two witnesses to the 
same overt act, or on confession in open court. Nor shall 
any person be attainted of treason or felony by the legis- 
lature : nor shall any attainder work corruption of blood, 
nor, except during the life of the offender, forfeiture of 
estate to the commonwealth. 6 

32. The people have a right to assemble in an orderly 
and peaceable manner, to consult upon the common good, 
give instructions to their representatives, and to apply to 
those invested with authority for redress of grievances, or 
for other proper purposes, by petition, address, or remon- 
strance. 7 

33. No title of nobility, hereditary distinction, privilege, 

1 This provision is substantially universal, though, not so fully and 
formally expressed in all the constitutions. 

2 A very common but not universal provision. 

3 Virginia Bill of Eights of June 12, 76. 
* Substantially universal. 

5 Universal. 

6 These propositions, express the supreme law of most if not all the 
states, respecting treason. 

7 In substance universal. 



SO POLITICAL AND CONSTITUTIONAL LAW 

honor, or emolument, shall ever be granted or confirmed. 1 

34. Emigration from the state shall not be prohibited. 2 

35. Among the natural rights, some are in their very 
nature inalienable ; because no equivalent can be given or 
received for them. Of this kind, are the rights of con- 
science. 3 Religion, or the duty which we owe to our Cre- 
ator, and the manner of discharging it, can be directed 
only by reason and conviction, not by force or violence;, 
and therefore all men are equally entitled to the free ex- 
ercise of religion according to the dictates of conscience;, 
and it is the mutual duty of all to practice Christian for- 
bearance, love and charity, towards each other. 4 

No one shall be harmed, molested, or restrained, in his 
person, liberty, or estate, for worshiping God in the man- 
ner and season agreeable to his conscience, or for or on 
account of his religious professions, opinions or sentiments,, 
provided he does not disturb the public peace, nor obstruct 
others in their religious worship, nor justify practices in- 
consistent with the general law of the state. JSTor shall 
the civil or political rights, privileges, or capacities, of any 
person or persons, be diminished, enlarged, or affected, by 
reason of any opinion upon a matter of religion. Nor 
shall any one be compelled to attend, erect, or support., any 
place of worship, or to maintain any ministry against his 
own consent. 5 

. 36. A frequent recurrence to fundamental principles,, 
and a firm adherence to justice, moderation, temperance,, 
industry, frugality and all the social virtues, are indispens- 
ably necessary to preserve the blessings of liberty and 
good government: the people ought, therefore, to pay 
particular attention to these points, in the choice of offi- 

1 Universal. 

2 Common but not universal. 

3 Const. N. H. 

4 Virginia Bill of Eights of June 12, '76. 

5 In some of the states, a man is incompetent to be a witness or a. 
juror if he does not believe in the existence of God as the Supreme 
Judge of the world and the dispenser of rewards and punishments. In 
other respects, the language of the several constitutions is nearly the 
same with that of the text. 



OF THE UNITED STATES. 87 

cers and representatives; and they have a right to re- 
quire of their law-givers and magistrates an exaet and 
constant observance of them in making and executing such 
laws as are necessary for the good government of the 
state. 1 And in order effectually to secure the religious 
and political freedom established by our venerable ances- 
tors, and to preserve the same for our posterity, we do 
declare that the essential and unquestionable rights and 
principles herein mentioned, shall be established, main- 
tained, and preserved, and shall be of paramount obliga- 
tion in all legislative, judicial, and executive proceedings. 2 

BOUNDARIES AND DOMAIN. 

37. The property of the soil being one of the essential 
rights of the collective body of the people, it is necessary 
in order to avoid future disputes, that the limits of this 
state should be ascertained with precision : and this con- 
vention, — composed of the immediate representatives of 
the people, chosen by them to assert their rights, and to 
revise the powers of government, — doth assert and declare 
that the boundaries of this state rightfully are and shall 
be as follows : . 3 

38. The people of this state, in their right of sovereignty, 
are deemed to possess the original and ultimate property 
in and to all the lands within the jurisdiction of the state; 
and all lands the title to which shall fail from a defect of 
heirs, shall revert or escheat to the people. 4 

39. All lands within this state are declared to be allodial, 
so that, subject only to the liability to escheat, the entire 

1 Const Mass, Pt. i, 18 ; Term. Ch. i, 18 ; N. H. Pt. I, 38 ; Virginia 
Bill of Eights of June 12, 1776. 

2 Const. R. I. Art. I. It is usually declared, that everything in the 
Bill or Declaration of Rights, is excepted and reserved out of the gen- 
eral powers of government, and shall forever remain inviolate ; or else, 
that this enumeration of rights shall not he construed to impair or deny 
others retained by the people. 

3 The article relating to boundaries, was not inserted in all the consti- 
tutions of the original states. It forms, however, an important feature 
of those of the new states, and ought, perhaps, to appear in every con- 
stitution. 

4 Const. N. Y. Art. I, 11. 



88 POLITICAL AND CONSTITUTIONAL LAW 

and absolute property is vested in the owners according to 
the nature of their respective estates. 1 

ELECTORS. 

40. Every male citizen of this state, or of the United 
States, of the age of twenty-one years or upwards, who 
shall have been a resident in *this state one year, and of 
the county in which he offers to vote five months, next be- 
fore the election, shall be entitled to vote for all officers 
that now are or hereafter may be elective by the people : 2 
Provided, however, that no person in the military, naval, 
or marine service of the United States, shall be considered 
a resident in this state, by being stationed in any garrison, 
barrack, or military or naval place or station within this 
state ; and no pauper, idiot, insane person, or person con- 
victed of a crime which excludes him from being a wit- 
ness, unless pardoned and restored by law to the right of 
suffrage, shall enjoy the right of an elector. 3 

41. Electors shall in all cases, except treason, felony, or 
breach of the peace, be privileged from arrest during their 
attendance at elections, and in going to and returning from 
the same. 4 

DISTRIBUTION OP THE POWERS OF GOVERNMENT. 

42. The government of this state shall consist of three 
distinct branches — the legislative, judicial, and executive; 
and no person or persons belonging to, or constituting 
one of these branches, shall exercise any of the powers 
properly belonging to either of the others, except as 
herein expressly provided. 5 

1 Const. N. Y. Art. I, 13. 

2 Each state makes its own regulations as to age, time of residence, 
pre-payment of taxes, property qualifications, etc. And these regula- 
tions are so many and various that I shall not here attempt to compile 
them ; but refer the reader to the several constitutions themselves. 

3 See Const. N. J. Art. n. ; N. Y. Art. n. ; — similar provisions are 
common. 

* Very nearly universal. 

5 This division is made by all the constitutions. 



OF THE UNITED STATES. 89 



THE LEGISLATIVE POWER. 



43. The legislative power of the government of this 
state 1 shall be vested in a Legislature, which shall consist 
of a Senate and House of Representatives. 2 

44. Senators and representatives shall be elected by and 
from among the qualified electors in each of the several 
counties of this state. 3 

45. Each house shall be the judge of the elections, re- 
turns, and qualifications of its own members ; and a ma- 
jority of each shall constitute a quorum to do business; 
but a smaller number may adjourn from day to day, and 
may be authorized to compel the attendance of absent 
members, in such manner, and under such penalties as 
each house may provide. 

46. Each house shall choose its own officers, determine 
the rules of its proceedings, punish its members for dis- 
orderly behaviour, and may, with the concurrence of two- 
thirds, expel a member. 

47. Each house shall keep a journal of its proceedings, 
and from time to time publish the same ; and the yeas and 

1 The common form is — ' The legislative power of this state shall,' 
etc. In one or two instances we have — ' The supreme legislative power 
within this state, ' etc. : which is so far from expressing the truth, that 
it conveys a false idea : for when we consider, that in every constitu- 
tion, the people reserve to themselves that paramount, supreme and 
uncontrollable legislative power, by which they ordain and establish, 
and change or abolish, their organic law, and that all other legislative 
bodies must legislate subordinately thereto, it is clearly perceived that 
not even ' the legislative power of the state ' is in any case vested in any 
representative legislature. 

2 This clause is expressed in a varity of forms ; but always to the 
same purpose, — the division of the legislative body into two distinct 
branches ; the one called the Senate ; the other, the House of Repre- 
sentatives, the Assembly, the General Assembly, the House of Delegates, 
or the House of Commons ; and both together styled the General Assem- 
bly, the Legislature, the General Court, the Senate and General As- 
sembly, or the Senate and Assembly. 

3 The number and apportionment of senators and representatives, 
their several qualifications for and terms of office, and the times of their 
election, are generally fixed by the constitution. But in these particu- 
lars, hardly any two of the constitutions agree ; and each must be con- 
sulted as occasion may require. 



90 POLITICAL AND CONSTITUTIONAL LAW 

nays of the members of either house, on any question, 
shall, at the desire of one-fifth of those present, be entered 
on the journal. 

48. Neither house, during the session of the legislature,, 
shall, without the consent of the other, adjourn for more 
than three days, nor to any other place than that in which 
the two houses shall be sitting. 1 

49. The legislature shall have power to make all such 
laws and ordinances as they shall deem proper ; provided 
they be not repugnant to this constitution. 2 

50. All bills and joint resolutions shall be read three 
times in each house before the final passage thereof; and 
no bill or joint resolution shall pass unless there be a ma- 
jority of albthe members of each body personally present 
and agreeing thereto j and the yeas and nays of the mem- 
bers voting on such final passage shall be entered on the 
journals. 3 

51. To avoid improper influences which may result from 
intermixing in one and the same act such things as have 
no proper relation to each other, every law shall embrace 
but one object, and that shall be expressed in the title. 4 

52. JSTo act shall ever be revised or amended by mere 
reference to its title; but the revised act or amended sec- 
tion shall be set forth and published at full length. 5 

53. The legislature shall not pass any ex post facto law, or 

1 Nos. 45, 46, 47 and 48, are (with one or two trivial exceptions) sub- 
stantially the same in all the constitutions. 

2 See Const. Geo. (of 1798—1839) Art. i, 22 ; Mass. Pt. n, Ch. i, Sec. 
1, Art, 3-4; New Hamp. Pt. ii; Me. iv, in, 1. The power to make 
laws, vested in each state-legislature, is a general power, to be exercised 
at the discretion of the legislature, subject to the checks, restraints and 
limitations, contained in the constitution. The subjects over which it 
extends, are not enumerated and specified, as they are in the federal 
constitution. In the state constitutions, we look only for express limit- 
ations ; in the federal constitution, only for express and specific grants, 
of legislative power. 

3 Const. N. J. Art. iv, $ 4, 6. Provisions more or less stringent, and 
designed as checks upon hasty legislation, are common to all. 

* A very common but not universal provision. 
5 Also common but not universal. 



OF THE UNITED STATES. 91 

law impairing the obligation of contracts, 1 or depriving a 
party of any remedy for enforcing a contract, which ex- 
isted when the contract was made. 2 

54. Ko divorce shall be granted by the legislature. 3 

55. Every bill which shall have passed both houses, 
shall, before it become a law, be presented to the governor. 
If he approve, he shall sign it j but if he shall not approve, 
he shall return it with his objections to the house in which 
it shall have originated, who shall enter the objections at 
large upon their journal, and proceed to reconsider it. If, 
after such reconsideration, two-thirds of that house shall 
agree to pass the bill, it shall be sent with the objections 
to the other house, by which likewise it shall be reconsid- 
ered, and if ajDproved by two-thirds of that house, it shall 
be a law. But in such cases the votes of both houses shall 
be determined by yeas and nays, and the names of the per- 
sons voting for or against the bill shall be entered on the 
journals of each house respectively. If any bill shall not 
be returned by the governor within ten days (Sundays 
excepted) after it shall have been presented to him, it shall 
be a law in like manner as if he had signed it, unless the 
legislature, by their adjournment, prevented its return, in 
which case it shall be a law, unless sent back within three 
days after their next meeting. 4 

56. The house of representatives shall have the sole 
power of impeachment; but the senate shall have the sole 
power to try all impeachments ; and when sitting for that 
purpose, they shall be on oath or affirmation. When the 
governor is tried, the chief justice shall preside ; and no 
person shall be convicted without the concurrence of two- 
thirds of the members present. 

57. Judgment in case of impeachment shall not extend 
further than to removal from office, and disqualification to 
hold and enjoy any office of honor, trust, or profit, under 

1 Universal. 

2 Const. N. J. Art. iv, Sec. vn— 3. 

3 Common to many of the constitutions ; qualified in some, and omit- 
ted in others. 

4 This or a similar provision will be found in all. 



92 POLITICAL AND CONSTITUTIONAL LAW 

this state ; but the party convicted shall, nevertheless, be 
liable and subject to indictment, trial, judgment, and pun- 
ishment according to law. 1 

58. The senators and representatives shall receive a 
compensation for their services, to be ascertained by law, 
and paid out of the treasury of the state. They shall in 
all cases except treason, felony, and breach of the peace, be 
privileged from arrest during their attendance at the ses- 
sion of their respective houses, and in going to and return- 
ing from the same ) and for any speech or debate in either 
house, they shall not be questioned in any other place. 2 

59. ~No senator or representative shall, during the time 
for which he was elected, be appointed to any civil office 
of profit under the authority of this state, which shall 
have been created, or the emoluments whereof shall have 
been increased, during such time; and no person holding 
any office under this state, or under any other government 
or state, shall be a member of either house during his con- 
tinuance in office. 3 

60. ~No money shall be drawn from the treasury but in 
consequence of appropriations made by law. And an ac- 
curate statement of the receipts and expenditures of the 
public moneys shall be attached to and published with the 
laws at every regular session of the legislature. 4 

THE JUDICIAL POWER. 

61. The judicial power of this state shall be vested in 
one supreme court, in county courts, justices of the peace, 
and in such other courts inferior to the supreme court, as 
the legislature may from time to time establish by law. 5 

THE EXECUTIVE POWER. 

62. The supreme executive power shall be vested in a 

1 The several provisions relating to impeachment, and to what officers 
shall be liable thereto, are not uniformly the same in all the constitutions. 

2 Substantially the same in all. 

3 Variously qualified in the different constitutions. 
* Common to most if not all. 

5 Concerning the judicial power, little or nothing can be extracted 
from the several state constitutions which is common to all alike. 






OF THE UNITED STATES. 93 

governor; 1 who shall be elected by and from among the 
qualified electors of this state. 2 

63. The governor of this state shall take care that the 
laws be faithfully executed. He shall be commander-in- 
chief of the army and navy of this state ; and of the militia, 
except when called into the actual service of the United 
States; 3 and shall have full power, by himself or by any 
chief commander, or other officer or officers, from time to 
time, to train, instruct, exercise, and govern the militia and 
navy; and for the special defence and safety of this state, 
to assemble in martial array, and put in warlike posture, 
the inhabitants thereof, and to lead and conduct them, and 
with them encounter, repulse, repel, resist, and pursue, by 
force of arms, as well by sea as by land, within and with- 
out the limits of this state; and also to kill, slay, destroy 
if necessary, and conquer by all fitting ways, enterprise, 
and means, all and every such person and persons as shall 
at any time hereafter in a hostile manner attempt or enter- 
prise the destruction, invasion, detriment, or annoyance of 
this state; and to use and exercise over the army and 
navy, and over the militia in actual service, the law martial 
in time of war, invasion, and also in rebellion, declared by 
the legislature to exist, as occasion shall necessarily require. 
And surprise, by all ways and means whatsoever, all and 
every such person or persons, with their ships, arms, am- 
munition, and other goods, as shall in a hostile manner in- 
vade, or attempt the invading, conquering, or annoying 
this state : And, in fine, the governor is hereby intrusted 
with all other powers incident to the office of captain- 
general and commander-in-chief, and admiral, to be exer- 
cised agreeably to the rules and regulations of the consti- 
tution and the laws of the land : Provided, that the gov- 
ernor shall not at any time hereafter, by virtue of any 
power by this constitution granted, or hereafter to be 
granted to him by the legislature, transport any of the in- 

1 Or governor and lieutenant governor. 

2 At the time, in the manner, and for the term, prescribed by each 
constitution. 

3 Universal. 



94 POLITICAL AND CONSTITUTIONAL LAW 

habitants of this state, or oblige them to march out of the 
limits of the same, without their free aud voluntary con- 
sent, or the consent of the legislature, nor grant commis- 
sions for exercising the law martial in any case without 
the advice and consent of the legislature. 1 

64. When the governor shall, with the consent of the 
legislature, be out of the state in time of war, at the head 
of a military force thereof, he shall continue commander- 
in-chief of all the military force of the state. 2 He shall 
also have power to conduct, either in person or in such 
other manner as shall be prescribed by law, all intercourse 
with other and foreign states. 3 

65. The governor shall have the power to grant re- 
prieves, commutations and pardons, after conviction, for all 
offences except treason and cases of impeachment, upon 
such conditions, and with such restrictions and limitations, 
as he may think proper, subject to such regulations as may 
be provided by law relative to the manner of applying for 
pardons. Upon conviction for treason, he shall have power 
to suspend the execution of the sentence, until the case 
shall be reported to the legislature at its next session, 
when the legislature shall either pardon, or commute the 
sentence, direct the execution of the sentence, or grant a 
further reprieve. He shall annually communicate to the 
legislature each case of reprieve, commutation or pardon 
granted; stating the name of the convict, the crime of 
which he was convicted, the sentence and its date, and the 
date of the commutation, pardon or reprieve. 4 

66. The governor shall nominate, and by and with the 
advice and consent of the senate, appoint all civil and 
military officers of the state, whose appointment or elec- 
tion is not otherwise herein provided for, unless a different 

1 Const. Mass. Pt. n, Chapt. n, Sec. I, Art. 7; Const. New Hamp. tit. 
Executive Power. 

2 Const. K Y. Art. it, Sec. 6. 

3 Const. Va. Art. v, — 5. 

4 Const. K Y. Art. iv, Sec. 5; 111. iv, 8; Ind. v, 17; Ohio, in, 11. 
The exercise of the pardoning power is subjected to different regulations 
in some of the other states; sometimes it is reposed in the governor 
alone ; sometimes in the governor and council. 



OF THE UNITED STATED. 95 

mode of appointment be prescribed by the law creating 
the office. 1 

67. The governor shall have power to convene the 
legislature, whenever, in his opinion, public necessity 
requires it; and in case of disagreement between the two 
houses with respect to the time of adjournment, may ad- 
journ them to such time as he shall think proper, not be- 
yond the day of their next annual meeting. He shall com- 
municate by message to the legislature, at every session, 
the condition of the state, and recommend such measures 
to them as he shall judge expedient. He shall transact 
all necessary business with the officers of government, 
civil and military; and may require information from any 
military officer, or any officer in the executive department, 
upon any subject relating to the duties of their respective 
offices. He shall, at stated times, receive for his services a 
compensation to be determined and established by law, 
which shall neither be increased nor diminished after his 
election and during his continuance in office. 2 

68. There shall be a seal of this state, which shall be 
kept by the governor, be used by him officially, and be 

called the Great Seal of the State of . All grants 

and commissions shall be in the name and by the authority 

of the State of , be sealed with the Great Seal, 

signed by the governor, and attested by the secretary of 
this state. 

69. In case of the removal of the governor from office, 
or of his death, or resignation, the powers and duties of 
the office shall devolve on the speaker of the senate; and 
in case of the death, removal from office, or resignation 
of the speaker of the senate, the power and duties of the 
office shall devolve on the speaker of the house of rep- 
resentatives : provided that the speaker of the senate, 
or of the house of representatives, as the case may be, 
shall exercise the power and duties of said office only 

1 Const. Md. The constitutions widely differ in their dispositon of 
the power of appointment and of filling vacancies. 

2 Substantially common to all the constitutions. 



9b POLITICAL AND CONSTITUTIONAL LAW 

until a governor shall be elected by the people and be 
duly qualified. 1 

OTHER STATE OFFICERS. 

70. There shall be elected, by and from among the quali- 
fied electors of this state, a secretary of state, a state 
treasurer, an auditor-general, and an attorn ey-general, 

who shall severally hold their offices for the term of 

years, and perform such duties as may be prescribed by 
law. 2 

GENERAL PROVISIONS. 

71. No member of congress, nor any person holding any 
office of profit or trust under the United States, or under 
any other state or foreign power, shall hold or exercise 
any office of trust or profit under this state. 

72. Every person shall be disqualified from holding any 
office or place of honor or profit under the authority of 
this state who shall be convicted of having given or of- 
fered any bribe to procure his election or appointment. 

73. All officers for a term of years shall hold their offices 
for the terms respectively specified, only on the condition 
that they so long behave themselves well ; and shall be 
removed on conviction of misbehavior in office or of any 
infamous crime. 

74. All writs shall be in the name of the state; and 
all indictments shall conclude in these words, viz.: against 
the peace and dignity of the. State of . 3 

75. The following oath shall be taken and subscribed by 
every person elected or appointed to any office, civil or 
military, under this state, before he shall enter upon the 
duties of his office, to wit: — "I, A. B., do solemnly swear, 
that I will bear true faith and allegiance to the State of 
, and will support the Constitution thereof. So help 

1 Variously regulated. 

2 The provisions relating to state officers are various and cannot be 
reduced to any general form. Various provisions are also found rela- 
tive to county officers. 

3 The foregoing, or similar general provisions, and a great variety of 
ethers, are found in each constitution. 



OF THE UNITED STATES. 97 

me God." 1 And the members of the legislature, and all 
executive and judicial officers of this State, shall also take 
an oath to support the Constitution of the United States. 

MODE OF AMENDING THE CONSTITUTION. 

76. Any specific amendment or amendments to the con- 
stitution, may be proposed in the senate or house of rep- 
resentatives, and if the same shall be agreed to by a ma- 
jority of the members elected to each of the two houses, 
such proposed amendment or amendments shall be entered 
on their journals, with the yeas and nays taken thereon,, 
and referred to the legislature then next to be chosen, and 
shall be published, for three months previous to making 
such choice, in at least one newspaper of each county, if 
any be published therein ; and if in the legislature next 
chosen, as aforesaid, such proposed amendment or amend- 
ments, or any of them, shall be agreed to by a majority of 
all the members elected to each house, then it shall be the 
duty of the legislature to submit such proposed amend- 
ment or amendments, or • such of them as may have been 
agreed to as aforesaid by the two legislatures, to the 
people, in such manner and at such time, at least four 
months after the adjournment of the legislature, as the 
legislature shall prescribe; and if the people at a special 
election to be held for that purpose only, shall approve 
and ratify such amendment or amendments, or any of 
them, by a majority of the electors qualified to vote for 
members of the legislature voting thereon, such amend- 
ment or amendments, so approved and ratified, shall be- 
come part of the constitution; provided, that if more than 
one amendment be submitted, they shall be submitted in 
such manner and form that the people may vote for or 
against each amendment separately and distinctly; but no 

1 Const. Mass. Amend. Art. 6 ; New Hamp. tit. Oath and Subscrip- 
tions, etc. In favor of persons conscientiously scrupulous of taking and 
subscribing an oath, it is provided that an affirmation ' under the pains 
and penalties of perjury,' may be substituted. 



98 POLITICAL AND CONSTITUTIONAL LAW 

amendment or amendments shall be submitted to the peo- 
ple by the legislature oftener than once in five years. 1 



{2 go) OF THE FRAMING OF THE CONSTITUTION OF THE 
UNITED STATES ; AND HEREIN, FIRST 

I 76. Action (1 h) OF THE GENERAL CONVENTION OF 1787. 

of COn°T6SS. 

On the 3rd of February, 1781, the delegates of the 
several states in congress assembled under the articles of 
confederation, passed a resolution recommending to the 
states that they vest a power in congress, to levy a duty 
of five per cent, ad valorem, upon certain articles named, 
to pay the debts of the United States. 2 The states, how- 
ever, refused to acquiesce in this measure. Thence fol- 
lowed a series of resolutions in congress, pointing to the 
necessity of amending or revising the articles of union, 
and of granting to congress additional powers. 3 But these 
were also destined to fail of their object. It was consid- 
ered that any proposition for perfecting those articles 
3 7 - a should originate in the state legislatures.* 

polis conven- -„«« , . i , , , 

tion In January, 1786, a resolution was passed by the legis- 

lature of Yirginia to appoint commissioners, who, or any 
five of whom, were to meet such other commissioners as 
might be appointed by the other states, to take into con- 
sideration the trade of the United States,, and to consider 
how far a uniform system in their commercial regulations 
might be necessary, etc. 5 In response to this movement 
of Yirginia, NTew York, ]New Jersey, Pennsylvania, and 
Delaware, severally appointed their commissioners. These 
commissioners convened at Annapolis, Maryland, on the 

1 Const N. J. Art. ix ; N. Y. Art. xm ; Mass. Amend. Art. 9 ; Penna. 
Art. x ; Tenn. Art. xi ; Ohio, Art. xvi. The mode is generally much 
the same, but sometimes varied. 

2 See Elliot's Debates, Yol. i, p. 92. 

3 Id. p. 93. 4 Id. p. 111. 5 Id. p. 115. 



OF THE UNITED STATES. 99 

11th of September, 1786. They did nothing of import- 
ance, however, but make a report to the state legislatures, 
recommending the calling of a general convention of all 
the states to meet at Philadelphia, on the second Monday 
of May, 1787, ' to take into consideration the situation of 
the United States; to devise such further provisions as 
shall appear to them necessary to render the Constitution 
of the Federal Government adequate to the exigencies of 
the Union ; and to report such an act for that purpose, to 
the United States in Congress assembled, as when agreed 
to by them, and afterwards confirmed by the Legislature 
of every State, will effectually provide for the same/ 1 
They say * they are the more naturally led to this conclu- 
sion, as in the course of their reflections on the subject, 
they have been induced to think that the power of regu- 
lating trade is of such comprehensive extent, and will 
enter so far into the general system of the Federal Gov- 
ernment, that, to give it efficacy, and to obviate questions 
and doubts concerning its precise nature and limits, may 
require a correspondent adjustment of other parts of the 
Federal System.' 

Upon considering the report of these commissioners, the g 73. p ur _ 
then federal congress, on the 21st of February, 1787, re- ther action of 
solved as follows: 'Whereas, there is provision in the congress. 
Articles of Confederation and perpetual union, for making 
alterations therein, by the assent of a congress of the 
United States, and of the legislatures of the several States; 
and whereas experience hath evinced, that there are de- 
fects in the present confederation ; as a mean to remedy 
which, several of the States, and particularly the State of 
New York, by express instructions to their delegates in 
congress, have suggested a convention for the purposes 
expressed in the following resolution; and such conven- 
tion appearing to be the most probable mean of establish- 
ing in these States a firm national government : Resolved, 
That in the opinion of congress, it is expedient that, on the 
second Monday of May next, a Convention of Delegates, 

Elliot's Debates, Vol. 1, p. 118. 



100 POLITICAL AND CONSTITUTIONAL LAW 

who shall have been appointed by the several States, be 
held at Philadelphia, for the sole and express purpose of 
revising the Articles of Confederation, and reporting to 
Congress and the several Legislatures such alterations and 
provisions therein as shall, when agreed to in Congress and 
confirmed by the States, render the Federal Constitution 
adequate to the exigencies of Government and the preser- 
vation of the Union/ 1 

\ 79. Re- From the several responses of the states, 2 it appears that 

sponses of the each state, with the exception of Ehode Island, appointed 

states. an( j comm issioned delegates to represent it in the proposed 

convention. The commissions of the delegates were similar 

to the following: 

'By his Excellency, James Bowdoin, Esq., Governor of 
the Commonwealth of Massachusetts. 

'To the Hon. Francis Dana, Elbridge Gerry, Nathaniel 
Gorham, Bufus King, and Caleb Strong, Esqrs., greeting: 

' Whereas, Congress did, on the 21st day of February,, 
A. D. 1787, Besolve, "That, in* the opinion of Congress, it 
is expedient that, on the second Monday of May next, a 
Convention of Delegates, who shall have been appointed 
by the several States, be held at Philadelphia, for the sole 
and express purpose of revising the Articles of Confedera- 
tion, and reporting to Congress and the several Legisla- 
tures, such alterations and provisions therein as shall,, 
when agreed to in Congress, and confirmed by the States,, 
render the Federal Constitution adequate to the exigencies 
of Government and the preservation of the Union:" 

'And whereas, the General Court have constituted and 
appointed you their Delegates, to attend and represent 
this Commonwealth in the said proposed Convention, and 
have, by a resolution of theirs of the 10th of March last, 
requested me to commission you for that purpose : 

'Now, therefore, know ye, that, in pursuance of the 
resolutions aforesaid, I do, by these presents, commission 
you, the said Francis Dana, Elbridge Gerry, Nathaniel 

1 Elliot's Debates, Vol. I, pp. 119, 120. 
2 Id. 126-128. 



OP THE UNITED STATES. 101 

Gorham, Eufus King, and Caleb Strong, Esqrs., or any 
three of you, to meet such Delegates as may be appointed 
by the other, or any of the other States in the Union, to 
meet in Convention at Philadelphia, at the time and for 
the purposes aforesaid. 

1 In testimony whereof, I have caused the public Seal 
of the Commonwealth aforesaid to be hereunto affixed. 

1 Given at the Council Chamber, in Boston, the ninth 
day of April, A.D. 1787, and in the eleventh year of the 
Independence of the United States of America/ 

From the reported proceedings of this general conven- £ 80. The 
tion, it also appears, that the political parties of that day, parties in the 
the Nationals, and the Federals with whom were also the convention. 
State-Eights men, 1 were there represented: the former 
favoring a consolidation of the powers of the governments 
of the states into one great national government; the lat- 
ter, on the contrary, insisting upon a strict adherence to 
the fundamental principles of the original confederation. 
The two extreme parties, however, were induced to make 
mutual concessions : the more liberal of the State-Eights 
men conceding, that to remedy the principal defects of the 
articles of confederation, the federal government should 
act directly on the citizens of the states, individually, and 
be no longer compelled to resort to requisitions on the 
governments of the states, in order to execute its measures; 
and that, to remedy other imperfections, the people of the 
states should be represented in the federal legislature j the 
Nationals, in turn, abandoning their scheme of framing a 
government strictly national, for the people of the states 
as a single political body, and conceding that the states, as 
sovereign bodies, should be the foundation of the union, 
and be severally and equally represented in the govern- 
ment. 

The convention remained in session for many months, 2 3-^ •j.j ie 
discussing the plan to be adopted, in framing the new con- plan adopted, 
stitution, and the nature, extent, and distribution of the 

1 See post I 151 et seq. 



102 POLITICAL AND CONSTITUTIONAL LAW 

powers to be delegated to the general government j and 
finally, on the 17th day of September, 1787, agreed to sub- 
mit, to be adopted or rejected by the people of each state, 
the following: 



CONSTITUTION OF THE UNITED STATES. 
PREAMBLE. 

We, the people of the United States, in order to form a 
more perfect union, establish justice, insure domestic tran- 
quillity, provide for the common defence, promote the 
general welfare, and secure the blessings of liberty to our- 
selves and our posterity, do ordain and establish this Con- 
stitution for the United States of America. 

ARTICLE I. 

Of the Legislature. 
SECTION I. 

1. All legislative powers herein granted, shall be vested 
in a Congress of the United States, which shall consist of 
a Senate and House of Representatives. 

SECTION II. 

1. The House of Eepresentatives shall be composed of 
members chosen every second year by the people of the 
several States; and the electors in each State shall have 
the qualifications requisite for electors of the most numer- 
ous branch of the State legislature. 

2. "No person shall be a representative who shall not 
have attained to the age of twenty -five years, and been 
seven years a citizen of the United States, and who shall 
not, when elected, be an inhabitant of that State in which 
he shall be chosen. 

3. Eepresentatives and direct taxes shall be apportioned 
among the several States which may be included within 
this Union, according to their respective numbers, which 
shall be determined by adding to the whole number of 
free persons, including those bound to service for a term 
of years, and excluding Indians not taxed, three-fifths of 



OF THE UNITED STATES. 103 

all other persons. The actual enumeration shall be made 
within three years after the first meeting of the Congress 
of the United States, and within every subsequent term of 
ten years, in such manner as they shall by law direct. 
The number of representatives shall not exceed one for 
every thirty thousand, but each State shall have at least 
one representative ; and until such enumeration shall be 
made, the State of New Hampshire shall be entitled to 
choose three; Massachusetts eight; Rhode Island and Provi- 
dence Plantations one ; Connecticut five ; New York six ; New 
Jersey four ; Pennsylvania eight ; Delaware one ; Maryland 
six; Virginia ten; North Carolina five; South Carolina 
five ; and Georgia three. 

4. When vacancies happen in the representation from 
any State, the executive authority thereof shall issue writs 
of election to fill up such vacancies. 

5. The House of Eepresentatives shall choose their 
speaker and other officers, and shall have the sole power 
of impeachment. 

SECTION III. 

1. The Senate of the United States shall be composed 
of two senators from each State, chosen by the legislature 
thereof, for six years, and each senator shall have one 
vote. 

2. Immediately after they shall be assembled in conse- 
quence of the first election, they shall be divided, as equal- 
ly as may be, into three classes. The seats of the senators 
of the first class shall be vacated at the expiration of the 
second year, of the second class at the expiration of the 
fourth, and of the third class at the expiration of the sixth 
year, so that one-third may be chosen every second year; 
and if vacancies happen, by resignation or otherwise, dur- 
ing the recess of the legislature of any State, the executive 
thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacan- 
cies. 

3. No person shall be a senator who shall not have at- 
tained to the age of thirty years, and been nine years a 
citizen of the United States, and who shall not, when 



104 POLITICAL AND CONSTITUTIONAL LAW 

elected, be an inhabitant of that State for which he shall 
be chosen. 

4. The Yice President of the United States shall be 
President of the Senate, but shall have no vote, unless 
they be equally divided. 

5. The Senate shall choose their other officers, and also 
a president pro tempore ■, in the absence of the Yice Presi- 
dent, or when he shall exercise the office of President of 
the United States. 

6. The Senate shall have the sole power to try all im- 
peachments. When sitting for that purpose, they shall be 
on oath or affirmation. When the President of the United 
States is tried, the chief justice shall preside; and no per- 
son shall be convicted without the concurrence of two- 
thirds of the members present. 

7. Judgment in case of impeachment shall not extend 
further than to removal from office, and disqualification to 
hold and enjoy any office of honor, trust, or profit, under 
the United States ; but the party convicted shall, never- 
theless, be liable and subject to indictment, trial, judgment, 
and punishment according to law. 

SECTION IV. 

1. The times, places, and manner of holding elections 
for senators and representatives, shall be prescribed in 
each State by the legislature thereof; but the Congress 
may at any time, by law, make or alter such regulations, 
except as to the place of choosing senators. 

2. The Congress shall assemble at least once in every 
year, and such meeting shall be on the first Monday in De- 
cember, unless they shall by law appoint a different day. 

section v. 
1. Each House shall be the judge of the elections, re- 
turns, and qualifications of its own members; and a ma- 
jority of each shall constitute a quorum to do business; 
but a smaller number may adjourn from day to day, and 
may be authorized to compel the attendance of absent 
members, in such manner and under such penalties as each 
House may provide. 



OP THE UNITED STATES. 105 

2. Each House may determine the rules of its proceed- 
ings, punish its members for disorderly behavior, and, with 
the concurrence of two-thirds, expel a member. 

3. Each House shall keep a journal of its proceedings, 
and from time to time publish the same, excepting such 
parts as may in their judgment require secrecy; and the 
yeas and nays of the members of either House, on any 
question, shall, at the desire of one-fifth of those present, 
be entered on the journal. 

4. Neither House during the session of Congress shall, 
without the consent of the other, adjourn for more than 
three days, nor to any other place than that in which the 
two Houses shall be sitting. 

SECTION VI. 

1. The senators and representatives shall receive a com- 
pensation for their services, to be ascertained by law, and 
paid out of the treasury of the United States. They shall 
in all cases, except treason, felony, and breach of the peace, 
be privileged from arrest during their attendance at the 
session of their respective Houses, and in going to or re- 
turning from the same ; and for any speech or debate in 
either House, they shall not be questioned in any other 
place. 

2. No senator or representative shall, during the time 
for which he was elected, be appointed to any civil office 
under the authority of the United States, which shall have 
been created, or the emoluments whereof shall have been 
increased, during such time ; and no person holding any 
office under the United States shall be a member of either 
House during his continuance in office. 

SECTION VII. 

1. All bills for raising revenue shall originate in the 
House of Eepresentatives ; but the Senate may propose or 
concur with amendments, as on other bills. 

2. Every bill which shall have passed the House of Eep- 
resentatives and the Senate shall, before it become a law, 
be presented to the President of the United States; if he 
.approve, he shall sign it; but if not, he shall return it, 



106 POLITICAL AND CONSTITUTIONAL LAW 

with his objections, to that House in which it shall have 
originated, who shall enter the objections at large on their 
journal, and proceed to reconsider it. If, after such recon- 
sideration, two-thirds of that House shall agree to pass the 
bill, it shall be sent, together with the objections, to the 
other House, by which it shall likewise be reconsidered,, 
and if approved by two-thirds of that House, it shall be- 
come a law. But in all such cases the votes of both Houses 
shall be determined by yeas and nays, and the names of 
the persons voting for and against the bill shall be entered. 
on the journal of each House respectively. If any bill 
shall not be returned by the President within ten days- 
Sundays excepted) after it shall have been presented to 
him, the same shall be a law in like manner as if he had 
signed it, unless the Congress by their adjournment pre- 
vent its return, in which case it shall not be a law. 

3. Every order, resolution, or vote to which the concur- 
rence of the Senate and House of Eepresentatives may bo 
necessary, (except a question of adjournment,) shall bo 
presented to the President of the United States; and be- 
fore the same shall take effect, shall be approved by him,, 
or being disapproved by him, shall be re-passed by two- 
thirds of the Senate and House of Representatives, accord- 
ing to the rules and limitations prescribed in the case of a 
bill. 

SECTION VIII. 

The Congress shall have power — 

1. To lay and collect taxes, duties, imposts, and excises,. 
to pay the debts and provide for the common defence and. 
general welfare of the United States; but all duties, im- 
posts, and excises shall be uniform throughout the United 
States : 

2. To borrow money on the credit of the United States ~ 

3. To regulate commerce with foreign nations, and 
among the several States, and with the Indian tribes : 

4. To establish a uniform rule of naturalization, and 
uniform laws on the subject of bankruptcies, throughout 
the United States : 

5. To coin money, regulate the value thereof, and of 



OP THE UNITED STATES. 107 

foreign coin, and fix the standard of weights and meas- 
ures : 

6. To provide for the punishment of counterfeiting the 
securities and current coin of the United States : 

7. To establish post offices and post roads : 

8. To promote the progress of science and useful arts, 
by securing for limited times to authors and inventors the 
exclusive right to their respective writings and discoveries: 

9. To constitute tribunals inferior to the Supreme 
Court : 

10. To define and punish piracies and felonies committed 
on the high seas, and offences against the law of nations : 

11. To declare war, grant letters of marque and reprisal, 
and make rules concerning captures on land and water : 

12. To raise and support armies ; but no appropriation 
of money to that use shall be for a longer term than two 
years : 

13. To provide and maintain a navy : 

14. To make rules for the government and regulation of 
the land and naval forces : 

15. To provide for calling forth the militia to execute 
the laws of the Union, suppress insurrections, and repel 
invasions : 

16. To provide for organizing, arming, and disciplining 
the militia, and for governing such part of them as may 
be employed in the service of the United States, reserving 
to the States respectively the appointment of the officers 
and the authority of training the militia according to the 
discipline prescribed by Congress : 

17. To exercise exclusive legislation, in all cases what- 
soever, over such district (not exceeding ten miles square,) 
as may, by cession of particular States and the acceptance 
of Congress, become the seat of government of the United 
States, and to exercise like authority over all places pur- 
chased, by the consent of the legislature of the State in 
which the same shall be, for the erection of forts, maga- 
zines, arsenals, dock-yards, and other needful buildings : 
and, 

18. To make all laws which shall be necessary and 



108 POLITICAL AND CONSTITUTIONAL LAW 

proper for carrying into execution the foregoing powers, 
and all other powers vested by this Constitution in the 
government of the United States, or any department or 
officer thereof. 

SECTION IX. 

1. The migration or importation of such persons as any 
of the States now existing shall think proper to admit, 
shall not be prohibited by the Congress prior to the year 
one thousand eight hundred and eight, but a tax or duty 
may be imposed on such importation, not exceeding ten 
dollars for each person. 

2. The privilege of the writ of habeas corpus shall not 
be suspended unless when, in case of rebellion or invasion, 
the public safety may require it. 

3. No bill of attainder, or ex post facto law, shall be 
passed. 

4. No capitation or other direct tax shall be laid, unless 
in proportion to the census or enumeration hereinbefore 
directed to be taken. 

5. No tax or duty shall be laid on articles exported from 
any State. No preference shall be given by any regula- 
tion of commerce or revenue to the ports of one State over 
those of another ; nor shall vessels bound to or from one 
State be obliged to enter, clear, or pay duties in another. 

6. No money shall be drawn from the treasury but in 
consequence of appropriations made by law : and a regu- 
lar statement and account of the receipts and expenditures 
of all public money shall be published from time to time. 

7. No title of nobility shall be granted by the United 
States, and no person holding any office of profit or trust 
under them shall, without the consent of Congress, accept 
of any present, emolument, office, or title of any kind 
whatever, from any king, prince, or foreign state. 

section x. 
1. No State shall enter into any treaty, alliance, or con- 
federation; grant letters of marque and reprisal; coin 
money; emit bills of credit; make anything but gold and 
silver coin a tender in payment of debts ; pass any bill of 



OF THE UNITED STATES. 109 

attainder, ex post facto law, or law impairing the obligation 
of contracts ; or grant any title of nobility. 

2. No State shall, without the consent of Congress, lay 
any imposts or duties on imports or exports, except what 
may be absolutely necessary for executing its inspection 
laws ; and the net produce of all duties and imposts laid by 
any State on imports or exports shall be for the use of the 
treasury of the United States, and all such laws shall be sub- 
ject to the revision and control of Congress. No State shall, 
without the consent of Congress, lay any duty on tonnage, 
keep troops or ships of war in time of peace, enter into 
any agreement or compact with another State, or with a 
foreign power, or engage in war, unless actually invaded, 
or in such imminent danger as will not admit of delay. 

ARTICLE II. 

Of the Executive. 

SECTION I. 

1. The executive power shall be vested in a President of 
the United States of America. He shall hold his office 
during the term of four years, and, together with the Yice 
President, chosen for the same term, be elected as follows : 

2. Each State shall appoint, in such manner as the legis- 
lature thereof may direct, a number of electors, equal to 
the whole number of senators and representatives to 
which the State may be entitled in Congress ; but no sen- 
ator or representative, or person holding any office of 
trust or profit under the United States, shall be appointed 
an elector. 

3. The electors shall meet in their respective States, and 
vote by ballot for two persons, of whom one at least shall 
not be an inhabitant of the same State with themselves. 
And they shall make a list of all the persons voted for, 
and of the number of votes for each ; which list they shall 
sign and certify, and transmit sealed to the seat of the 
government of the United States, directed to the Presi- 
dent of the Senate. The President of the Senate shall, 
in the presence of the Senate and House of Representa- 
tives, open all the certificates, and the votes shall then be 



110 POLITICAL AND CONSTITUTIONAL LAW 

counted. The person having the greatest number of 
votes shall be the President, if such number be a majority 
of the whole number of electors appointed; and if there 
be more than one who have such a majority, and have an 
equal number of votes, then the House of Eepresentatives 
shall immediately choose by ballot one of them for Presi- 
dent; and if no person have a majority, then, from the 
five highest on the list, the said House shall in like man- 
ner choose the President. But in choosing the President, 
the votes shall be taken by States ; the representation 
from each State having one vote ; a quorum for this pur- 
pose shall consist of a member or members from two- 
thirds of the States, and a majority of all the States shall 
be necessary to a choice. In every case, after the choice 
of the President, the person having the greatest number 
of votes of the electors shall be Yice President. But if 
there should remain two or more who have equal votes, 
the Senate shall choose from them by ballot the "Vice Pres- 
ident. 1 

4. The Congress may determine the time of choosing 
the electors and the day on which they shall give their 
votes, which day shall be the same throughout the United 
States. 

5. No person except a natural born citizen, or a citizen 
of the United States at the time of the adoption of this 
Constitution, shall be eligible to the office of President ; 
neither shall any person be eligible to that office who shall 
not have attained to the age of thirty-five years, and been 
fourteen years a resident within the United States. 

6. In case of the removal of the President from office, 
or of his death, resignation, or inability to discharge the 
powers and duties of the said office, the same shall de- 
volve on the Yice President; and the Congress may by 
law provide for the case of removal, death, resignation, or 
inability, both of the President and Yice President, de- 
claring what officer shall then act as President ; and such 

1 This third section is supplied by the Xltth Amendment. See post f 
Amendments. 



OP THE UNITED STATES. Ill 

officer shall act accordingly, until the disability be re- 
moved or a President shall be elected. 

7. The President shall, at stated times, receive for his 
services a compensation, which shall neither be increased 
nor diminished during the period for which he shall have 
been elected, and he shall not receive within that period 
any other emolument from the United States, or any of 
them. 

8. Before he enter on the execution of his office, he 
shall take the following oath or affirmation : 

1 1 do solemnly swear (or affirm) that I will faithfully 
execute the office of President of the United States, and 
will, to the best of my ability, preserve, protect, and de- 
fend the Constitution of the United States/ 

SECTION II. 

1. The President shall be commander-in-chief of the 
army and navy of the United States and of the militia of 
the several States, when called into the actual service of 
the United States ; he may require the opinion in writing 
of the principal officer in each of the executive depart- 
ments, upon any subject relating to the duties of their 
respective offices ; and he shall have power to grant re- 
prieves and pardons for offences against the United States, 
except in cases of impeachment. 

2. He shall have power, by and with the advice and 
consent of the Senate, to make treaties, provided two- 
thirds of the senators present concur : and he shall nom- 
inate, and by and with the advice and consent of the 
Senate, shall appoint ambassadors, other public ministers 
and consuls, judges of the Supreme Court, and all other 
officers of the United States whose appointments are not 
herein otherwise provided for, and which shall be estab- 
lished by law. But the Congress may by law vest the 
appointment of such inferior officers as they think proper 
in the President alone, in the courts of law, or in the 
heads of departments. 

3. The President shall have power to fill up all vacan- 
cies that may happen during the recess of the Senate, by 



112 POLITICAL AND CONSTITUTIONAL LAW 

granting commissions, which shall expire at the end of 
their next session. 

SECTION III. 

1. He shall, from time to time, give to Congress inform- 
ation of the state of the Union, and recommend to their 
consideration such measures as he shall judge necessary 
and expedient ; he may, on extraordinary occasions, con- 
vene both Houses, or either of them ; and in case of dis- 
agreement between them, with respect to the time of ad- 
journment, he may adjourn them to such time as he shall 
think proper; he shall receive ambassadors and other 
public ministers ; he shall take care that the laws be faith- 
fully executed; and shall commission all the officers of 
the United States. 

SECTION IV. 

1. The President, Yice President, and all civil officers of 
the United States, shall be removed from office on im- 
peachment for and conviction of treason, bribery, or other 
high crimes and misdemeanors. 

AETICLE m. 
Of the Judiciary. 

SECTION I. 

1. The judicial power of the United States shall be vested 
in one Supreme Court, and in such inferior courts as Con- 
gress may, from time to time, order and establish. The 
judges, both of the Supreme and inferior courts, shall hold 
their offices during good behaviour; and shall, at stated 
times, receive for their services a compensation, which 
shall not be diminished during their continuance in office. 

section n. 
1. The judicial power shall extend to all cases in law 
and equity arising under this Constitution, the laws of the 
United States, and treaties made, or which shall be made, 
under their authority; to all cases affecting ambassadors,, 
other public ministers and consuls; to all cases of admiralty 
and maritime jurisdiction ; to controversies to which the 
United States shall be a party; to controversies between 



OF THE UNITED STATES. 113 

two or more States; between a State and citizens of another 
State; between citizens of different States; between citizens 
of the same State claiming lands under grants of different 
States ; and between a State, or the citizens thereof, and 
foreign states, citizens or subjects. 

2. In all cases affecting ambassadors, other public min- 
isters, and consuls, and those in which a State shall be a 
party, the Supreme Court shall have original jurisdiction. 
In all the other cases before mentioned, the Supreme Court 
shall have appellate jurisdiction, both as to law and fact, 
with such exceptions, and under such regulations as Con- 
gress shall make. 

3. The trial of all crimes, except in cases of impeach- 
ment, shall be by jury, and such trial shall be held in the 
State where the said crimes shall have been committed- 
but when not committed within any State, the trial shall 
be at such place or places as Congress may by law have 
directed. 

SECTION III. 

1. Treason against the United States shall consist only 
in levying war against them, or in adhering to their 
enemies, giving them aid and comfort. ~No person shall 
be convicted of treason, unless on the testimony of two 
witnesses to the same overt act, or confession in open court. 

2. Congress shall have power to declare the punishment 
of treason; but no attainder of treason shall work corrup- 
tion of blood, or forfeiture, except during the life of the 

person attainted. 

AKTICLE IV. 

Miscellaneous. 

SECTION I. 

1. Full faith and credit shall be given in each State to 
the public acts, records, and judicial proceedings of every 
other State. And Congress may, by general laws, pre- 
scribe the manner in which such acts, records, and pro- 
ceedings shall be proved, and the effect thereof. 

SECTION II. 

1. The citizens of each State shall be entitled to all the 
privileges and immunities of citizens in the several States. 

H 



114 POLITICAL AND CONSTITUTIONAL LAW 

2. A person charged in any State with treason, felony, 
or other crinie, who shall flee from justice and be found in 
another State, shall, on demand of the executive authority 
of the State from which he fled, be delivered up, to be re- 
moved to the State having jurisdiction of the crime. 

3. !No person held to service or labor in one State, under 
the laws thereof, escaping into another, shall, in conse- 
quence of any law or regulation therein, be discharged 
from such service or labor; but shall be delivered up on 
claim of the party to whom such service or labor may be 
due. 

SECTION III. 

1. New States may be admitted by Congress into this 
Union; but no new State shall be formed or erected within 
the jurisdiction of any other State, nor any State be formed 
by the junction of two or more States, or parts of States, 
without the consent of the legislatures of the States con- 
cerned, as well as of Congress. 

2. Congress shall have power to dispose of, and make all 
needful rules and regulations respecting the territory, or 
other property belonging to the United States; and nothing 
in this Constitution shall be so construed as to prejudice 
any claims of the United States or of any particular State. 

SECTION IV. 

1. The United States shall guarantee to every State in 
this Union a republican form of government, and shall 
protect each of them against invasion; and, on application 
of the legislature, or of the executive (when the legislature 
cannot be convened), against domestic violence. 

ARTICLE V. 
Of Amendments. 
1. Congress, whenever two-thirds of both Houses shall 
deem it necessary, shall propose amendments to this Con- 
stitution ; or, on the application of the legislatures of two- 
thirds of the several States, shall call a convention for pro- 
posing amendments, which, in either case, shall be valid to 
all intents and purposes, as part of this Constitution, when 
ratified by the legislatures of three-fourths of the several 



OF THE UNITED STATES. 115 

■States, or by conventions in three-fourths thereof, as the 
one or the other mode of ratification may be proposed by 
Congress; provided, that no amendment which may be 
made prior to the year one thousand eight hundred and 
■eight, shall in any manner affect the first and fourth clauses 
in the ninth section of the first article; and that no State, 
without its consent, shall be deprived of its equal suffrage 
in the Senate. 

AKTICLE VI. 

Miscellaneous. 

1. All debts contracted and engagements entered into, 
before the adoption of this Constitution, shall be as valid 
against the United States under this Constitution, as under 
the Confederation. 

2. This Constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority of the 
United States, shall be the supreme law of the land ; and the 
judges in every State shall be bound thereby, anything in 
the constitution or laws of any State to the contrary not- 
withstanding. 

3. The senators and representatives before mentioned, 
and the members of the several State legislatures, and all 
executive and judicial officers, both of the United States 
and of the several States, shall be bound by oath or affirm- 
ation to support this Constitution ; but no religious test 
shall ever be required as a qualification to any office, or 
public trust, under the United States. 

ARTICLE Vn. 

Of the Ratification. 
1. The ratification of the conventions of nine States 
shall be sufficient for the establishment of this Constitution 
between the States so ratifying the same. 

Done in Convention, by the unanimous consent of the 
States present, the seventeenth day of September, in the 
year of our Lord one thousand seven hundred and 
eighty-seven, and of the Independence of the United 



116 



POLITICAL AND CONSTITUTIONAL LAW 



States of America the twelfth. In witness whereof, we 
have hereunto subscribed our names. 

George Washington, 

President, and Deputy from Virginia. 



new hampshire. 
John Langdon, 
Nicholas Gilman. 

massachusetts. 
Nathaniel Gorman, 
Bufus King. 

connecticut. 
"William Samuel Johnson, 
Roger Sherman. 



delaware. 
George Read, 
Gunning Bedford, jun., 
John Dickinson, 
Richard Bassett, 
Jacob Broom. 

maryland. 
James McHenry, 
Daniel of St. Tho. Jenifer, 
Daniel Carroll. 



NEW YORK. 

Alexander Hamilton. 

new jersey. 
William Livingston, 
David Brearly, 
William Patterson, 
Jonathan Dayton. 



virginia. 
John Blair, 
James Madison, jr. 

north carolina. 
William Blount, 
Richard Dobbs Spaight, 
Hugh Williamson. 



pennsylvania. 
Benjamin Franklin, 
Thomas Mifflin, 
Robert Morris, 
George Clymer, 
Thomas Fitzsimons, 
Jared Ingersoll, 
James Wilson, 
gouverneur morris. 

Attest, 



south carolina. 
John Rutledge, 
Chas. Cotesworth Plnckney, 
Charles Pinckney, 
Pierce Butler. 

GEORGIA. 

William Few, 
Abraham Baldwin. 

William Jackson, Secretary, 



imposed. 



§82. The Such was the federal constitution as originally framed 
plan recom- and submitted by the General Convention of the States. 
ed, not 'This Convention, composed of men who possessed the 
confidence of the people, and many of whom had been 
highly distinguished by their patriotism, virtue, and wis- 
dom, in times which tried the souls of men, undertook the 
arduous task. In the mild season of peace, with minds 
unoccupied with other subjects, they passed many months 
in cool, uninterrupted, and daily consultations; and finally, 
without having been awed by power, or influenced by any 
passion, except love for their country, they presented and 



OF THE UNITED STATES. 117 

recommended to the people the plan produced by their 
joint and very unanimous councils/ 1 

It is to be recollected, < that the powers of the conven- 
tion were merely advisory and recommendatory; that 
they were so meant by the states, and so understood by 
the convention; and that the latter accordingly planned 
and proposed a constitution, which was to be of no more 
consequence than the paper on which it was written, un- 
less it should be stamped with the approbation of those to 
whom it was addressed.' 2 

Concluding its labors, the convention submitted the in- I 83. How 
strument, by a resolution, and a letter accompanying the Pubinitie(i by 
same to the president of congress; 3 which resolution and .. 
letter I here subjoin. 

'IN CONVENTION. 

< Monday, September 17, 1787. 

1 PRESENT 

'The States of New Hampshire; Massachusetts; Connects 
■cut; Mr. Hamilton, from New York; New Jersey ; Pennsyl- 
vania; Delaware; Maryland; Virginia; North Carolina; 
South Carolina; and Georgia.* 

'Resolved, That the preceding Constitution be laid before 
the United States in Congress assembled; and that it is the 
opinion of this Convention, that it should afterwards be 
submitted to a Convention of Delegates, chosen in each 
State by the People thereof, under the recommendation of 
its Legislature, for their assent and ratification ; and that 
each Convention assenting to, and ratifying the same, should 
give notice thereof to the United States in Congress as- 
sembled. 

'Resolved, That it is the opinion of this Convention, that 

lr nie Federalist Letter No. 2. 

2 The Federalist, No. 40, p. 183. 

3 See Elliot's Debates, Vol. I, p. 16. 

4 Rhode Island was opposed to increasing the power of the federal 
government, and took no part in the formation of the constitution. 



118 POLITICAL AND CONSTITUTIONAL LAW 

as soon as the Conventions of nine States shall have rati- 
fied this Constitution, the United States in Congress as- 
sembled should fix a day on which electors should be ap- 
pointed by the States which shall have ratified the same r 
and a day on which the electors should assemble to vote 
for the President, and the time and place for commencing* 
proceedings under this Constitution; that after such pub- 
lication, the electors should be appointed, and the senators 
and representatives elected; that the electors should meet 
on the day fixed for the election of the President, and 
should transmit their votes, certified, signed, sealed, and 
directed, as the Constitution requires, to the Secretary of 
the United States in Congress assembled; that the senators 
and representatives should convene at the time and place 
assigned; that the senators should appoint a president of 
the senate, for the sole purpose of receiving, opening, and 
counting the votes for President; and that after he shall be 
chosen, the Congress, together with the President, should, 
without delay, proceed to execute this Constitution. 

'By the unanimous order of the Convention. 

1 George Washington, President. 

'William Jackson, Secretary.' 



„ 00 Xi 'IN CONVENTION. 

g 06. a. .Let- 
ter of the con- < September 17, 1787. 
vention to the <■ Sir 

president of cyf Q nave now the honor to submit to the consideration 
of the United States in Congress assembled that Constitu- 
tion which has appeared to us the most advisable. 

'The friends of our country have long seen and desired, 
that the power of making war, peace and treaties; that of 
levying money and regulating commerce, and the. corre- 
spondent executive and judicial authorities, should be fully 
and effectually vested in the general government of the 
union : but the impropriety of delegating such extensive 
trusts to one body of men is evident. Hence results the 
necessity of a different organization. 

'It is obviously impracticable in the Federal Govern- 



congress. 



OF THE UNITED STATES. 119 

ment of these States, to secure all rights of independent 
sovereignty to each, and yet provide for the interest and 
safety of all. Individuals entering into society must give 
up a share of liberty to preserve the rest. The magnitude 
of the sacrifice must depend as well on situation and cir- 
cumstance, as on the object to be obtained. It is at all 
times difficult to draw with precision the line between 
those rights which must be surrendered, and those which 
may be reserved; and on the present occasion this diffi- 
culty was increased by a difference among the several 
States as to their situation, extent, habits, and particular 
interests. 1 

'In all our deliberations on this subject, we kept steadily 
in our view that which appears to us the greatest interest 
of every true American, the consolidation of our union, in 
which is involved our prosperity, felicity, safety, perhaps 
our national existence. This important consideration, 
seriously and deeply impressed on our minds, led each 
State in the Convention to be less rigid on points of infer- 
ior magnitude than might have been otherwise expected; 
and thus the Constitution, which now we present, is the 
result of a spirit of amity, and of that mutual deference 
and concession which the peculiarity of our political situa- 
tion rendered indispensable. 

1 That it will meet the full and entire approbation of 
every State, is not perhaps to be expected; but each will 
doubtless consider, that had her interests been , alone con- 
sulted, the consequences might have been particularly 
disagreeable or injurious to others : that it is liable to as 
few exceptions as could reasonably have been expected,, 
we hope and believe : that it may promote the lasting wel- 
fare of that country so dear to us all, and secure her free- 
dom and happiness, is our most ardent wish. 

1 It will be observed, that the above paragraph very clearly points to 
the boundary line between the internal sovereignty or right of self-gov- 
ernment, and the external sovereignty or right of control of external 
affairs. The latter was to be delegated to the common government. 



120 POLITICAL AND CONSTITUTIONAL LAW 

' With great respect, we have the honor to be, sir, your 
excellency's most obedient and humble servants. 

'George Washington, President. 
4 By unanimous order of the Convention. 
'His excellency, the President of Congress/ 



\ 84. Action The foregoing constitution, resolutions and letter, being 
of congress, reported by the general convention of the states to the 
then federal congress, that body, on the 28th of September, 
1787, unanimously resolved : — ' That the said report, with 
the resolutions and letter accompanying the same, be 
transmitted to the several Legislatures, in order to be sub- 
mitted to a Convention of Delegates chosen in each State 
by the people thereof, in conformity to the resolves of the 
Convention, made and provided in that case/ 

Thus the new constitution was submitted to the people, 
for their ratification or rejection. But to the people of — 
what ? In this connection the words of the preamble, ' We, 

the people of the United, States, do ordain,' etc., 

should be considered. Some have argued from this, that 
the constitution of the United States was ' ordained and 
established/ not by the ' people ' of each state, but by 'the 
nation ; ' meaning by 'the nation/ the American people at 
large as composing a single political community. By the 
resolutions and letter of the general convention that framed 
it, seconded by the resolution of congress, the instrument 
was referred to the several legislatures of the states; a 
copy of the original was transmitted to each, with the re- 
commendation that it 'be submitted to a Convention of 
Delegates chosen in each State by the people thereof. 7 By the 
separate and independent action of each state legislature, 
it was so submitted; and by the separate and independent 
action of each state convention, as we shall see, it was fin- 
ally adopted, assented to and ratified. The plan of ratifi- 
cation was prescribed by the very last article of the in- 
strument itself; which, as we have seen, provided that ' the 
ratification of the conventions of nine states shall be suffi- 
cient for the establishment of this constitution between the 



OF THE UNITED STATES. 121 

States so ratifying the same/ We must therefore under- 
stand, that the words of the preamble, 'We, the people of 
the United States,' were employed in the sense of 'We, 
the people of each 'of the United States ;' and meant, We, 
the body of electors of each of the United States : these elect- 
ors being the 'people' always intended, and the only peo- 
ple ever known in the history of our sovereign legisla- 
tion. x 



(2 h) OF THE RATIFYING- CONVENTIONS OF THE STATES 
AND THE ORDINANCES OF RATIFICATION. 

The original articles of confederation had only been \ 85. Action 
sanctioned by authority of the state legislatures : and as of the states, 
these legislatures were merely the agents of the people? 
the ministers of the original thirteen sovereigns, having no 
proper authority to delegate their powers; and as, for that 
reason, the validity of the articles of confederation had 
often been questioned; it was from the first proposed that 
the new constitution should be established by the para- 
mount authority of the people (or body of electors) com- 
posing each state; so that it should rest upon the same 
foundation with that of the constitution of each state. 

In order to show by the highest authority, namely, the 
records, in what manner the work was completed, I shall 
introduce these sovereigns to speak for themselves by their 
several ordinances of ratification, and in the order in 
which they originally spoke. 2 

Delaware. — 'We, the Deputies of the people of the Dela- g g-5. a. 
"ware State, in Convention met, having taken into serious 
consideration the Federal Constitution, proposed and 

1 See the original form of the preamble, § 109, post ; who 'the people ' 
are, \ 90 et seq., and as to citizens, of the states and the United States, 
I 155. 

2 The ordinances passed by the several conventions of the states, are 
•collected together in Elliot's Debates, Vol. I, pp. 319 to 335. t 



122 POLITICAL AND CONSTITUTIONAL LAW 

agreed upon by the Deputies of the United States, in a 
General Convention, held at the City of Philadelphia, on 
the seventeenth day of September, in the year of our 
Lord one thousand seven hundred and eighty-seven, have 
approved, assented to, ratified, and confirmed, and by these 
presents do, in virtue of the power and authority to us 
given, for and in behalf of ourselves and our constituents, 
fully, freely, and entirely approve of, assent to, ratify, and 
confirm, the said Constitution. 

'Done in Convention, at Dover, this seventh day of De- 
cember, in the year aforesaid, and in the year of the Inde- 
pendence of the United States of America, the twelfth/ 1 

§85. b. Pennsylvania. — 'In the name of the People of Penn- 

sylvania. 

'Be it known unto all men, that we, the Delegates of 
the People of the Commonwealth of Pennsylvania, in 
General Convention assembled, have assented to and rati- 
fied, and by these presents do, in the name and by the 
authority of the same People, and for ourselves, assent to 
and ratify the foregoing the Constitution for the United 
States of America. Done in Convention at Philadelphia,, 
the twelfth day of December, in the year of our Lord one 
thousand seven hundred and eighty-seven, and of the In- 
dependence of the United States of America the twelfth. 
In witness whereof, we have hereunto subscribed our 
names/ 2 

Z 85 c. New Jersey. — (After reciting the previous proceed- 

ings, of the convention of the states, of congress, and of 
the state legislature, the ratifying convention of this state 
says : ) 

' Now be it known, That we, the Delegates of the State- 
of New Jersey, chosen by the people thereof, for the pur- 
poses aforesaid, having maturely deliberated on and con- 
sidered the aforesaid proposed Constitution, do hereby, for 
and on the behalf of the people of the said State of New 

1 Elliot's Debates, Vol. I, p. 319. 

2 Elliot's* Debates, Vol. i, p. 319. 



OP THE UNITED STATES. 123 

Jersey, agree to, ratify, and confirm, the same and every 
part thereof. 

' Done in Convention, by the unanimous consent of the 
members present, this 18th day of December, in the year 
of our Lord 1787, and of the Independence of the United 
States of America, the twelfth/ 1 

Georgia. — 'In Convention, Wednesday, January 2nd, \ 85. d* 
1788. 

1 To all to whom these presents shall come, greeting : 

* 'Whereas, The form of a Constitution for the Govern- 
ment of the United States of America, was, on the 17th 
day of September, 1787, agreed upon and reported to Con- 
gress, by the Deputies of the said United States, convened 
in Philadelphia, which said Constitution is written in the 
words following, to wit : a 

1 And Whereas, The United States in Congress assembled 
did, on the 28th day of September, 1787, Resolve, unani- 
mously, " That the said report, with the resolutions and letter 
accompanying the same, be transmitted to the several Leg- 
islatures, in order to be submitted to a Convention of 
Delegates chosen in each State by the people thereof, in 
conformity to the resolves of the Convention made and 
provided in that case:" — 

'And Whereas, The Legislature of the State of Georgia 
did, on the 26th day of October, 1787, in pursuance of the 
above recited resolution of Congress, Resolve, That a Con- 
vention be elected on the day of the next general election, 
and in the same manner that representatives are elected; 
and that the said Convention consist of not more than three 
members from each county ; and that the said Convention 
should meet at Augusta, on the fourth Tuesday in Decem- 
ber then next, and as soon thereafter as convenient, pro- 
ceed to consider the said report and resolutions, and to 
adopt or reject any part or the whole thereof: 

1 Now know ye, that we, the Delegates of the people of the 
State of Georgia, in Convention met, pursuant to the resolu- 

1 Elliot's Debates, Vol. I, p. 320-2. 

2 Here follows a copy of the constitution. 



124 POLITICAL AND CONSTITUTIONAL LAW 

tions of the Legislature aforesaid, having taken into our se- 
rious consideration the said Constitution, have assented to, 
ratified, and adopted, and by these presents do, in virtue of 
the powers and authority to us given by the people of the 
said State for that purpose, for and in behalf of ourselves 
and our constituents, fully and entirely assent to, ratify, 
and adopt the said Constitution. 

'Done in Convention, at Augusta, in the said State, on 
the 2nd day of January, in the year of our Lord, 1788, and 
of the Independence of the United States, the twelfth/ 1 

I 85. e. Connecticut. — < In the name of the People of the State 

of Connecticut. 

1 We, the Delegates of the People of said State, in Gen- 
eral Convention assembled, pursuant to an Act of the 
Legislature in October last, have assented to, and ratified, 
and by these presents do assent to, ratify, and adopt the 
Constitution reported by the Convention of Delegates, in 
Philadelphia, on the 17th day of September, A. D., 1787, 
for the United States of America. 

'Done in Convention, at Hartford, this 9th day of Jan- 
uary, A. D., 1788. In witness whereof, we have hereunto 
set our hands/ 2 

% 85. /. Massachusetts. — e Commonwealth of Massachusetts. 

' The Convention having impartially discussed, and fully 
considered, the Constitution for the United States of 
America, reported to Congress by the Convention of Del- 
egates from the United States of America, and sub- 
mitted to us by a resolution of the General Court of 
the said Commonwealth, passed the 25th day of Octo- 
ber, last past, — and acknowledging, with grateful hearts, 
the goodness of the Supreme Euler of the Universe 
in affording the people of the United States, in the 
course of his providence, an opportunity, deliberately 
and peaceably, without fraud or surprise, of entering into 

1 Elliot's Debates, Yol. i, p. 323. 

2 Elliot's Debates, Vol. i, p. 321. 



OF THE UNITED STATES. 125 

an explicit and solemn compact with each other, by as- 
senting to and ratifying a new Constitution, in order to 
form a more perfect Union, establish justice, insure domes- 
tic tranquillity, provide for the common defence, promote 
the general welfare, and secure the blessings of liberty to 
themselves and their posterity, — do, in the name and in 
behalf of the people of the Commonwealth of Massachu- 
setts, assent to and ratify the said Constitution for the 
United States of America. 

' And as it is the opinion of this Convention, that certain 
amendments and alterations in the said Constitution 
would remove the fears, and quiet the apprehensions, of 
many of the good people of this Commonwealth, and 
more effectually guard against an undue administration of 
the Federal Government, — the Convention do therefore 
recommend that the following alterations and provisions 
be introduced into the said Constitution : — 

'I. That it explicitly declare that all powers not ex- 
pressly delegated by the aforesaid Constitution are re- 
served to the several States, to be by them exercised. 

'U. That there shall be one representative to every 
thirty thousand persons, according to the census men- 
tioned in the Constitution, until the whole number of the 
representatives amounts to two hundred. 

'III. That Congress do not exercise the powers vested 
in them by the 4th section of the 1st Article, but in cases 
where a State shall neglect or refuse to make the regula- 
tions therein mentioned, or shall make regulations subver- 
sive of the right of the people to a free and equal repre- 
sentation in Congress, agreeably to the Constitution. 

TV. That Congress do not lay direct taxes but when the 
moneys arising from the impost and excise are insufficient 
for the public exigencies, nor then, until Congress shall 
have first made a requisition upon the States to assess, 
levy, and pay, their respective proportions of such requi- 
sition, agreeably to the census fixed in the said Constitu- 
tion, in such way and manner as the Legislatures of the 
States shall think best; and in such case, if any State shall 
neglect or refuse to pay its proportion, pursuant to such 



126 POLITICAL AND CONSTITUTIONAL LAW 

requisition, then Congress may assess and levy such State's 
proportion, together with interest thereon at the rate of 
six per cent, per annum, from the time of payment pre- 
scribed in such requisition. 

1 Y. That Congress erect no company of merchants with 
exclusive advantages of commerce. 

<YI. That no person shall be tried for any crime by 
which he may incur an infamous punishment, or loss of 
life, until he be first indicted by a grand jury, except in 
such cases as may arise in the government and regulation 
of the land and naval forces. 

'VII. The Suj)reme Judicial Federal Court shall have 
no jurisdiction of causes between citizens of different 
States, unless the matter in dispute, whether it concerns 
the realty or personalty, be of the value of three thousand 
dollars at the least; nor shall the Federal Judicial powers 
extend to any actions between citizens of different States, 
where the matter in dispute, whether it concerns the realty 
or personalty, is not of the value of fifteen hundred dol- 
lars at least. 

'VIII. In civil actions between citizens of different 
States, every issue of fact, arising in actions at common 
law, shall be tried by a jury, if the parties, or either of 
them, request it. 

'IX. Congress shall at no time consent that any person, 
holding an office of trust or profit under the United States, 
shall accept of a title of nobility, or any other title or 
office, from any king, prince, or foreign state. 

1 And the Convention do, in the name and in behalf of 
the people of this Commonwealth, enjoin it upon their 
representatives in Congress, at all times, until the altera- 
tions and provisions aforesaid have been considered, agree- 
ably to the fifth article of the said Constitution, to exert 
all their influence, and use all reasonable and legal meth- 
ods, to obtain a ratification of the said alterations and pro- 
visions, in such manner as is provided in the said article. 

'And that the United States, in Congress assembled, 
may have due notice of the assent and ratification of the 
said Constitution by this Convention, it is Besolved, That 



OF THE UNITED STATES. 127 

the assent and ratification aforesaid be engrossed on parch- 
ment, together with the recommendation and injunction 
aforesaid, and with this resolution : and that his Excel- 
lency, John Hancock, Esq., President, and the Hon. "Wil- 
liam Cushing, Esq., Yice President of the Convention, 
transmit the same, countersigned by the Secretary of the 
•Convention, under their hands and seals, to the United 
States in Congress assembled/ 1 

Maryland. — 'In Convention of the Delegates of the \ 85. g. 
people of the State of Maryland, April 28, 1788. 

'We, the Delegates of the people of the State of Mary- 
land, having fully considered the Constitution of the 
United States of America, reported to Congress, by the 
•Convention of Deputies, from the United States of Amer- 
ica, held in Philadelphia, on the 17th day of September, 
in the year 1787, of which the annexed is a copy, and sub- 
mitted to us by a resolution of the General Assembly of 
Maryland, in November Session, 1787, do, for ourselves, 
and in the name, and on behalf of the people of this State, 
.assent to, and ratify the said Constitution. 

'In witness whereof, we have hereunto subscribed our 
names. 2 

South Carolina. — 'In Convention of the people of the \ 85 - h * 
State of South Carolina, by their representatives, held in 
the City of Charleston, on Monday the 12th day of May, and 
-continued by divers adjournments to Friday the 23d day of 
May, Anno Domini, 1788, and in the twelfth year of the 
Independence of the United States of America. 

'The Convention, having maturely considered the Con- 
stitution, or form of Government, reported to Congress 
by the Convention of Delegates from the United States of 
America, and submitted to them by a resolution of the 
legislature of this State, passed the 17th and 18th days of 
February last, in order to form a more perfect Union, 
establish justice, insure domestic tranquillity, provide for 

1 Elliot's Debates, Yol. I, pp. 322-3. 

2 Elliot's Debates, Vol. I, p. 324. 



128 POLITICAL AND CONSTITUTIONAL LAW 

the common defence, promote the general welfare, and 
secure the blessings of liberty to the people of the said 
United States, and their posterity, — Do, in the name and 
behalf of the people of this State, hereby assent to and 
ratify the said Constitution. 

'Done in Convention, the 23d day of May, in the year of 
our Lord, 1788, and of the Independence of the United 
States of America, the twelfth. 

1 And Whereas, It is essential to the preservation of the 
rights reserved to the several States, and the freedom of 
the people, under the operations of a General Government,, 
that the right of prescribing the manner, time, and places 
of holding the elections to the Federal Legislature, should 
be forever inseparably annexed to the sovereignty of the 
several States, — This Convention doth declare, that the 
same ought to remain, to all posterity, a perpetual and 
fundamental right in the local, exclusive of the inter- 
ference of the General, Government, except in cases where 
the Legislatures of the States shall refuse or neglect to 
perform and fulfil the same, according to the tenor of the 
said Constitution. This Convention doth also declare, that 
no section or paragraph of the said Constitution warrants 
a construction, that the States do not retain every power 
not expressly relinquished by them, and vested in the 
General Government of the Union. 

'Resolved, That the General Government of the United 
States ought never to impose direct taxes, but where the 
moneys arising from the duties, imposts, and excise, are 
insufficient for the public exigencies, nor then until Congress 
shall have made a requisition upon the States to assess,. 
levy and pay, their respective proportions of such requisi- 
tions; and in case any State shall neglect or refuse to pay 
its proportion, pursuant to such requisition, then Congress 
may assess and levy such State's proportion, together with 
interest thereon, at the rate of six per centum per annum, 
from the time of payment prescribed by such requisition* 

'Resolved, That the third section of the sixth article 
ought to be amended by inserting the word " other " be- 
tween the words " no " and " religious/' 



OF THE UNITED STATES. 129 

' Resolved, That it be a standing instruction to all such 
Delegates as may hereafter be elected to represent this 
State in the General Government, to exert their utmost 
abilities and influence to effect an alteration of the Consti- 
tution, conformably to the foregoing resolutions. 

* Done in Convention, the 23d day of May, in the year of 
our Lord, 1788, and of the Independence of the United 
States of America, the twelfth/ 1 

New Hampshire. — <In Convention of the Delegates of I 85. u 
the People of the State of New Hampshire, June the 21st, 
1788. 

' The Convention, having impartially discussed and fully 
considered the Constitution for the United States of Amer- 
ica, reported to Congress by the Convention of Delegates 
from the United States of America, and submitted to us 
by a resolution of the General Court of said State, passed 
the 14th day of December last past, and acknowledging, 
with grateful hearts, the goodness of the Supreme Buler 
of the Universe in affording the people of the United 
States, in the course of His providence, an opportunity, 
deliberately and peaceably, without fraud or surprise, of 
entering into an explicit and solemn Compact with each 
other, by assenting to and ratifying a new Constitution, in 
order to form a more perfect union, establish justice, in- 
sure domestic tranquillity, provide for the common de- 
fence, promote the general welfare, and secure the bless- 
ings of liberty to themselves and their posterity, — Do, in 
the name and behalf of the people of the State of New 
Hampshire, assent to and ratify the said Constitution for 
the United States of America. And as it is the opinion 
of this Convention, that certain amendments and altera- 
tions in the said Constitution would remove the fears and 
quiet the apprehensions of many of the good people of 
this State, and more effectually guard against an undue 
administration of the Federal Government, — the Conven- 
tion do, therefore, recommend that the following amend- 

1 Elliot's Debates, Vol. i, p. 325. 



130 POLITICAL AND CONSTITUTIONAL LAW 

ments and provisions be introduced in the said Constitu- 
tion : — 

' I. That it be explicitly declared that all powers not ex- 
pressly and particularly delegated by the aforesaid Consti- 
tution, are reserved to the several States, to be by them 
■exercised. 

'II, That there shall be one representative to every 
thirty thousand persons, according to the census men- 
tioned in the Constitution, until the whole number of rep- 
resentatives amounts to two hundred. 

< III. That Congress do not exercise the power vested 
in them by the fourth section of the first article, but in 
•case when a State shall neglect or refuse to make the regu- 
lations therein mentioned, or shall make regulations sub- 
versive of the right of the people to a free and equal 
representation in Congress; nor shall Congress in any 
•case make regulations contrary to a free and equal repre- 
sentation. 

'IV. That Congress do not lay direct taxes, but when 
the moneys arising from impost, excise, and their other 
resources, are insufficient for the public exigencies; nor 
then, until Congress shall have first made a requisition 
•upon the States to assess, levy, and pay, their respective 
proportions of such requisition, agreeably to the census 
iixed in the said Constitution, in such way and manner as 
the Legislature of the State shall think best; and in such 
case, if any State shall neglect, then Congress may assess 
.and levy such State's proportion, together with the inter- 
est thereon, at the rate of six per cent, per annum, from 
the time of payment prescribed in such requisition. 

1 V. That Congress shall erect no company of merchants 
"with exclusive advantages of commerce. 

' VI. That no person shall be tried for any crime, by 
wdiich he may incur an infamous punishment, or loss of 
life, until he first be indicted by a grand jury, except in 
;such cases as may arise in the government and regulation 
of the land and naval forces. 

'VII. All common law cases, between citizens of differ- 
ent States, shall be commenced in the common law courts 



OF THE UNITED STATES. 131 

of the respective States, and no appeal shall be allowed to 
the Federal court, in such cases, unless the sum or value 
of the thing in controversy amount to three thousand 
dollars. 

'VIII. In civil actions, between citizens of different 
States, every issue of fact, arising in actions at common 
law, shall be tried by jury, if the parties, or either of 
them, request it. 

' IX. Congress shall at no time consent that any person, 
holding an office of trust or profit under the United States, 
shall accept any title of nobility, or any other title or 
office, from any king, prince, or foreign state. 

'X. That no standing army shall be kept up in time of 
peace, unless with the consent of three-fourths of the 
members of each branch of Congress; nor shall soldiers, 
in time of peace, be quartered upon private houses, with- 
out the consent of the owner. 

1 XI. Congress shall make no law touching religion, or 
to infringe the rights of conscience. 

'XII. Congress shall never disarm any citizen, unless 
such as are or have been in actual rebellion. 

'And the Convention do, in the name and in behalf of 
the people of this State enjoin it upon their representa- 
tives in Congress, at all times, until the alterations and 
provisions aforesaid have been considered, agreeably to 
the fifth article of the said Constitution, to exert all their 
influence, and use all reasonable and legal methods, to ob- 
tain a ratification of the said alterations and provisions, 
in such manner as is provided in the article. 

' And that the United States, in Congress assembled, may 
have due notice of the assent and ratification of the said 
Constitution by this Convention, it is Resolved, That the as- 
sent and ratification aforesaid be engrossed on parchment, 
together with the recommendation and injunction afore- 
said, and with this resolution; and that John Sullivan, 
Esqr., President of the Convention, and John Langdon, 
Esqr., President of the State, transmit the same, counter- 
signed by the Secretary of the Convention, and the Sec- 



132 POLITICAL AND CONSTITUTIONAL LAW 

retary of State, under their hands and seals, to the United 
States in Congress assembled/ 1 

\ 85. 7c. Virginia. — ' We, the Delegates of the people of Virginia,, 

duly elected in pursuance of a recommendation from the 
General Assembly, and now met in Convention, having 
fully and freely investigated and discussed the proceedings 
of the Federal Convention, and being prepared as well as 
the most mature deliberation hath enabled us, to decide 
thereon, — Do, in the name and behalf of the people of 
Virginia, declare and make known, that the powers granted 
under the Constitution, being derived from the people of 
the United States, may be resumed by them, whensoever 
the same shall be perverted to their injury or oppression, 
and that every power not granted thereby remains with 
them, and at their will ; that therefore no right, of any de- 
nomination, can be cancelled, abridged, restrained, or 
modified, by the Congress, by the Senate or House of Kep- 
resentatives, acting in^ any capacity, by the President, or 
any department or officer of the United States, except in 
those instances in which power is given by the Constitu- 
tion for those purposes j and that, among other essential 
rights, the liberty of conscience, and of the press, cannot 
be cancelled, abridged, restrained, or modified, by any 
authority of the United States. With these impressions, 
with a solemn appeal to the Searcher of all hearts for the 
purity of oar intentions, and under the conviction that 
whatsoever imperfections may exist in the Constitution 
ought rather to be examined in the mode prescribed there- 
in, than to bring the Union into danger by a delay with a 
hope of obtaining amendments previous to the ratifica- 
tion, — We, the said Delegates, in the name and in behalf 
of the people of Virginia, do, by these presents, assent to 
and ratify the Constitution recommended, on the 17th day 
of September, 1787, by the Federal Convention, for the 
G-overnment of the United States, hereby announcing to 
all those whom it may concern, that the said Constitution 

1 Elliot's Debates, Vol. I, pp. 325-327. 



OP THE UNITED STATES. 133 

is binding upon the said people, according to an authentic 
copy hereto annexed, in the words following. 1 

'Done in Convention, this 26th day of June, 1788/ 2 

New York. — ' We, the Delegates of the People of the \ 85. I. 
State of New York, duly elected, and met in Convention, 
having maturely considered the Constitution for the United 
States of America, agreed to on the 17th day of September, 
in the year 1787, by the Convention then assembled at 
Philadelphia, in the Commonwealth of Pennsylvania (a 
copy whereof precedes these presents), and having, also, 
seriously and deliberately considered the present situation 
•of the United States, — Do declare and make known : — 

'That all power is originally vested in, and consequently 
derived from the people, and that Government is instituted 
by them for their common interest, protection, and security. 

'That the enjoyment of life, liberty, and the pursuit of 
liappiness, are essential rights, which every Government 
ought to respect and preserve. 

' That the powers of Government may be re-assumed by 
the people, whensoever it shall become necessary to their 
liappiness; that every power, jurisdiction, and right, which 
is not by the said Constitution clearly delegated to the 
-Congress of the United States, or the departments of the 
Government thereof, remains to the people of the several 
States, or to their respective State Governments, to whom 
they may have granted the same; and that those clauses, 
in the said Constitution, which declare that Congress shall 
not have or exercise certain powers, do not imply that 
Congress is entitled to any powers not given by the said 
Constitution ; but such clauses are to be construed either 
sls exceptions to certain specified powers, or as inserted 
merely for greater caution. 

'That the people have an equal, natural, and unalienable 
right, freely and peaceably, to exercise their religion, ac- 
cording to the dictates of conscience; and that no religious 
sect, or society, ought to be favored or established by law 
in preference to others. 

1 Here follows a copy of the instrument. 

2 Elliot's Debates, i, 327. 



134 POLITICAL AND CONSTITUTIONAL LAW 

"That the people have a right to keep and bear arms; 
that a well regulated militia, including the bod}^ of the 
people capable of bearing arms, is the proper, natural, and 
safe defence of a free State. 

"That the militia should not be subject to martial law,, 
except in time of war, rebellion or insurrection. 

'That standing armies, in time of peace, are dangerous 
to liberty, and ought not to be kept up, except in cases of 
necessity, and that at all times the military should be 
under strict subordination to the civil power. 

' That, in time of peace, no soldier ought to be quartered 
in any house without the consent of the owner, and in 
time of war only by the civil magistrate, in such manner 
as the laws may direct. 

' That no person ought to be taken, imprisoned, or dis- 
seized of his freehold, or be exiled, or deprived of his priv- 
ileges, franchises, life, liberty, or property, but by due 
process of law. 

'That no person ought to be put twice in jeopardy of 
life or limb, for one and the same offence; nor, unless in 
case of impeachment, be punished more than once for the 
same offence. That every person restrained of his liberty 
is entitled to an inquiry into the lawfulness of such re- 
straint, and to a removal thereof if unlawful; and that 
such inquiry, or removal, ought not to be denied or de- 
layed, except when, on account of public danger, the Con- 
gress shall suspend the privilege of the writ of Habeas 
Corpus. That excessive bail ought not to be required, nor 
exccssive fines imposed, nor cruel or unusual punishments, 
inflicted. 

'That (except in the government of the land and navaL 
forces, and of the militia, when in actual service, and in 
cases of impeachment) a presentment, or indictment, by a. 
grand jury, ought to be observed, as a necessary prelimi- 
nary to the trial of all crimes cognizable by the judiciary 
of the United States; and such trial should be speedy,, 
public, and by an impartial jury of the county where the 
crime was committed; and that no person can be found 
guilty without the unanimous consent of such jury. But 



OF THE UNITED STATES. 135 

in cases of crimes not committed within any county of 
any of the United States, and in cases of crimes not com- 
mitted within any county in which a general insurrection 
may prevail, or which may be in the possession of a foreign 
enemy, the inquiry and trial may be in such county as the 
Congress shall by law direct; which county, in the two 
cases last mentioned, should be as near as conveniently 
may be to that county in which the crime may have been 
committed; — and that, in all criminal prosecutions, the 
accused ought to be informed of the cause and nature of 
the accusation, to be confronted with his accusers and the 
witnesses against him, to have the means of producing his 
witnesses, and the assistance of counsel for his defence; 
and should not be compelled to give evidence against him- 
self. 

' That the trial by jury, in the extent that it obtains by 
the common law of England, is one of the greatest securi- 
ties to the rights of a free people, and ought to remain in- 
violate. 

'That every freeman has a right to be secure from alj 
unreasonable searches and seizures of his person, his papers 
or his property; and, therefore, that all warrants to search 
suspected places, or seize any freeman, his papers, or 
property, without information upon oath, or affirmation 
of sufficient cause, are grievous and oppressive; and that 
all general warrants (or such in which the place or person 
suspected are not particularly designated) are dangerous, 
and ought not to be granted. 

'That the people have a right peaceably to assemble to- 
gether, to consult for their common good, or to instruct 
their representatives, and that every person has a right to 
petition, or apply to the Legislature, for redress of griev- 
ances. 

'That the freedom of the press ought not to be violated, 
or restrained. 

'That there should be, once in four years, an election of 
the President and Yice President, so that no officer, who 
may be appointed by the Congress, to act as President, in 
case of the removal, death, resignation, or inability, of the 



136 POLITICAL AND CONSTITUTIONAL LAW 

President and Yice President, can in any case continue to 
act beyond the termination of the period for which the 
last President and Yice President were elected. 

'That nothing contained in the said Constitution is to be 
construed to prevent the Legislature of any State from 
passing laws at its discretion, from time to time, to divide 
such State into convenient districts, and to apportion its 
Eepresentatives to and amongst such districts. . 

'That the prohibition contained in the said Constitution, 
against ex post facto laws, extends only to laws concerning 
crimes. 

1 That all appeals in causes determinable according to 
the course of the common law, ought to be by writ of 
error, and not otherwise. 

i That the judicial power of the United States, in cases 
in which a State may be a party, does not extend to crim- 
inal prosecutions, or authorize any suit by any person 
against a State. 

'That the judicial power of the United States, as to 
controversies between citizens of the same State, claiming 
lands under grants from different States, is not to be con- 
strued to extend to any other controversies between them, 
except those which relate to such lands, so claimed, under 
grants of different States. 

'That the jurisdiction of the Supreme Court of the 
United States, or of any other court to be instituted by 
the Congress, is not in any case to be increased, enlarged, 
or extended, by any fiction, collusion, or mere suggestion; 
and that no treaty is to be construed so to operate as to 
alter the Constitution of any State. 

' Under these impressions, and declaring that the rights 
aforesaid cannot be abridged, or violated, and that the ex- 
planations aforesaid, are consistent with the said Constitu- 
tion, and in confidence that the amendments, which shall 
have been proposed to the said Constitution, will receive, 
an early and mature consideration ; We, the said Dele- 
gates, in the name and in the behalf of the people of the 
State of New York, do, by these presents, assent to, and 
ratify the said Constitution. In full confidence, neverthe- 



OF THE UNITED STATES. 137 

less, that, until a Convention shall be called and convened, 
for proposing amendments to the said Constitution, the 
militia of this State will not be continued in service out of 
this State for a longer term than six weeks, without the 
consent of the Legislature thereof; that the Congress will 
not make or alter any regulation in this State, respecting 
the times, places and manner, of holding elections for Sen- 
ators or Representatives, unless the Legislature of this 
State shall neglect or refuse to make laws or regulations 
for the purpose, or from any circumstance, be incapable of 
making the same; and that in those cases, such power will 
only be exercised until the Legislature of this State shall 
make provision in the premises ; that no excise will be im- 
posed on any article of the growth, production, or manu- 
facture of the United States, or any of them, within this 
State, ardent spirits excepted ; and that Congress will not 
lay direct taxes within this State, but when the moneys 
-arising from the impost and excise shall be insufficient for 
the public exigencies, nor then, until the Congress shall 
first have made a requisition upon this State, to assess, 
levy, and pay, the amount of such requisition, made agree- 
ably to the census fixed in the said Constitution, in such 
way and manner as the Legislature of this State shall 
judge best ; but that, in such case, if the State shall neg- 
lect or refuse to pay its proportion, pursuant to such requi- 
sition, then the Congress may assess and levy this State's 
proportion, together with interest, at the rate of six per 
centum per annum, from the time at which the same was 
required to be paid. 

' Done, in Convention, at Poughkeepsie, in the county 
of Duchess, in the State of New York, the 26th day of 
July, in the year of our Lord, 1788/ * 

North Carolina. — 'In Convention: 

' Whereas, The General Convention, which met in Phil- 
adelphia, in pursuance of a recommendation of Congress, 
did recommend to the citizens of the United States a Con- 

2 Elliot's Debates, Vol. I, pp. 327-329. 



I 85. m. 



138 POLITICAL AND CONSTITUTIONAL LAW 

stitution, or form of Government, in the following words,, 
namely : 1 

'Resolved, That this Convention, in behalf of the freemen, 
citizens and inhabitants of the State of North Carolina,. 
do adopt and ratify the said Constitution and form of Gov- 
ernment. 

'Done, in Convention, this twenty-first day of Novem- 
ber, one thousand seven hundred and eighty-nine/ 

(A set of resolutions were also passed by this Conven- 
tion, recommending six amendments, the first of which is 
as follows:) 

'1. Each State in the Union shall respectively retain 
every power, jurisdiction, and right, which is not by this. 
Constitution delegated to the Congress of the United States,. 
or to the departments of the General Government; nor 
shall the said Congress, nor any department of the said 
Government, exercise any act of authority over any indi- 
vidual in any of the said States, but such as can be justified 
under some power particularly given in this Constitution;, 
hut the said Constitution shall be considered at all times a 
solemn instrument, defining the extent of their authority,, 
and the limits of which they cannot rightfully exceed/ 2 

a 85. n. Rhode Island. — 'We, the Delegates of the people of the- 

State of Rhode Island and Providence Plantations, duly 
elected, and met in Convention, having maturely consid- 
ered the Constitution for the United States of America,, 
agreed to on the seventeenth day of September, in the 
year one thousand seven hundred and eighty-seven, by the 
Convention then assembled at Philadelphia, in the Com- 
monwealth of Pennsylvania (a copy whereof precedes these- 
presents), and having also seriously and deliberately con- 
sidered the present situation of this State, do declare and 
make known : — 

' I. That there are certain natural rights of which men,, 
when they form a social Compact, cannot deprive or divest 
their posterity, — among which are the enjoyment of life- 

1 Here follows a copy of the instrument. 
2 Elliot's Debates, Vol. I, p. 333. 



OF THE UNITED STATES. 139* 

and liberty, with the means of acquiring, possessing, and 
protecting property, and pursuing and obtaining happiness- 
and safety. 

'II. That all power is naturally vested in, and conse- 
quently derived from, the people; that magistrates, there- 
fore, are their trustees and agents, and at all times amena- 
ble to them. 

Ill That the powers of Government may be resumed by 
the people whensoever it shall become necessary to their 
happiness. That the rights of the States respectively to 
nominate and appoint all State officers, and every other 
power, jurisdiction, and right, which is not by the said 
Constitution clearly delegated to the Congress of the 
United States, or to the Departments of Government 
thereof, remain to the people of the several States, or their 
respective State Governments, to whom they may have 
granted the same ; and that those clauses in the Constitu- 
tion which declare that Congress shall not have or exer- 
cise certain powers, do not imply that Congress is entitled 
to any powers not given by the said Constitution; but such 
clauses are to be construed as exceptions to certain specified 
powers, or as inserted merely for greater caution. 

TV. That religion or the duty which we owe to our 
Creator, and the manner of discharging it, can be directed 
only by reason and conviction, and not by force and vio- 
lence ; and, therefore, all men have a natural, equal, and 
unalienable right to the exercise of religion according to 
the dictates of conscience; and that no particular religious- 
sect, or society, ought to be favored or established by law,, 
in preference to others. 

' Y. That the legislative, executive, and judiciary pow- 
ers of Government should be separate and distinct; and r 
that the members of the two first may be restrained from 
oppression, by feeling and participating the public bur- 
dens, they should, at fixed periods, be reduced to a private 
station, returned into the mass of the people, and the va- 
cancies be supplied by certain and regular elections, in 
which all, or any part of the former members to be elig- 



140 POLITICAL AND CONSTITUTIONAL LAW 

ible or ineligible, as the rules of the Constitution of Gov- 
ernment and the laws shall direct. 

1 VI. That elections of representatives in the Legislature 
ought to be free and frequent; and all men having suffi- 
cient evidence of permanent common interest with, and 
attachment to, the community, ought to have the right of 
suffrage ; and no aid, charge, tax, or fee, can be set, rated, 
or levied, upon the people, without their own consent, or 
that of their representatives so elected, nor can they be 
bound by any law to which they have not in like manner 
consented for the public good. 

' VII. That all power of suspending laws, or the execu- 
tion of laws, by any authority, without the consent of the 
representatives of the people in the Legislature, is injuri- 
ous to their rights, and ought not to be exercised. 

1 VIII. That, in all capital and criminal prosecutions, a 
man hath the right to demand the cause and nature of his 
accusation, to be confronted with the accusers and wit- 
nesses, to call for evidence, and be allowed counsel in his 
favor, and to a fair and speedy trial by an impartial jury 
in his vicinage, without whose unanimous consent he can- 
not be found guilty, (except in the government of the land 
and naval forces,) nor can he be compelled to give evi- 
dence against himself. 

' IX. That no freeman ought to be taken, imprisoned, or 
disseized of his freehold, liberties, privileges, or franchises, 
or outlawed, or exiled, or in any manner destroyed, or 
deprived of his life, liberty, or property, but by the trial 
by jury, or by the laws of the land. 

' X. That every freeman, restrained of his liberty, is en- 
titled to a remedy, to inquire into the lawfulness thereof, 
and to remove the same if unlawful, and that such remedy 
ought not to be denied or delayed. 

'XL That in controversies respecting property, and in 
suits between man and man, the ancient trial by jury, as 
hath been exercised by us and our ancestors, from the 
time whereof the memory of man is not to the contrary, 
is one of the greatest securities to the rights of the people, 
and ought to remain sacred and inviolable. 



OF THE UNITED STATES. 141 

'XII. That every freeman ought to obtain right and 
justice, freely and without sale, completely and without 
denial, promptly and without delay; and that all estab- 
lishments, or regulations, contravening these rights, are 
oppressive and unjust. 

'XIII. That excessive bail ought not to be required, nor 
excessive fines imposed, nor cruel or unusual punishments 
inflicted. 

'XIY. That every person has a right to be secure from 
all unreasonable searches and seizures of his person, his 
papers, or his property ; and, therefore, that all warrants 
to search suspected places, to seize any person, his papers, 
or his property, without information upon oath or affirm- 
ation of sufficient cause, are grievous and oppressive ; and 
that all general warrants (or such in which the place or 
person suspected are not particularly designated) are dan- 
gerous, and ought not to be granted. 

'XY. That the people have a right peaceably to as- 
semble together, to consult for their common good, or to 
instruct their representatives ; and that every person has 
a right to petition or apply to the Legislature for redress 
of grievances. 

'XVI. That the people have a right to freedom of 
speech, and of writing, and publishing their sentiments. 
That freedom of the press is one of the greatest bulwarks 
of liberty, and ought not to be violated. 

' XVII. That the people have a right to keep and bear 
arms; that a well-regulated militia, including the body of 
the people capable of bearing arms, is the proper, natural, 
and safe defence of a free State; that the militia shall not 
be subject to martial law, except in time of war, rebellion, 
or insurrection; that standing armies, in time of peace, are 
dangerous to liberty, and ought not to be kept up, except 
in cases of necessity; and that, at all times, the military 
should be under strict subordination to the civil power ; 
that, in time of peace, no soldier ought to be quartered in 
any house without the consent of the owner, and in time 
of war only by the civil magistrates, in such manner as the 
law directs. 



142 POLITICAL AND CONSTITUTIONAL LAW 

'XVIII. That any person religiously scrupulous of 
bearing arms ought to be exempted upon the payment of 
.an equivalent to employ another to bear arms in his stead. 

i Under these impressions, and declaring that the rights 
-aforesaid cannot be abridged or violated, and that the ex- 
planations aforesaid are consistent with the said Constitu- 
tion, and in confidence that the amendments hereinbefore 
mentioned will receive an early and mature consideration, 
.and, conformably to the fifth article of said Constitution, 
speedily become a part thereof, — "VVe, the said Delegates, 
in the name and in the behalf of the people of Ehode 
Island and Providence Plantations, do, by these presents, 
-assent to and ratify the said Constitution. In full confi- 
dence, nevertheless, that, until the amendments proposed 
shall be agreed to and ratified, pursuant to the aforesaid 
.fifth article, the militia will not be continued in service 
out of this State, for a longer term than six weeks, without 
the consent of the Legislature thereof; that the Congress 
will not make or alter any regulation in this State respect- 
ing the times, places, and manner of holding elections for 
I Senators or Representatives, unless the Legislature of this 
State shall neglect or refuse to make laws or regulations 
for the purpose, or from any circumstance, be incapable of 
making the same ; and that, in those cases, such power will 
• only be exercised until the Legislature of this State shall 
make provision in the premises; and that the Congress 
will not lay direct taxes within this State, but when the 
moneys arising from impost, tonnage, and excise, shall be 
insufficient for the public exigencies, nor until the Con- 
gress shall have first made a requisition upon this State to 
assess, levy, and pay, the amount of such requisition made, 
agreeably to the census fixed in the said Constitution, in 
such way and manner as the Legislature of this State shall 
judge best; and that Congress will not lay any capitation 
or poll tax. 

'Done in Convention, at ^Newport, in the County of 

Newport, in the State of Ehode Island and Providence 

Plantations, the twenty-ninth day of May, in the year of 

-our Lord one thousand seven hundred and ninety, and in 



OP THE UNITED STATES. 143 

-the fourteenth year of the Independence of the United 
.States of America. 1 



The following extract from the Journals of Congress \ 85. 
{under the Articles of Confederation), will show the action 
•of that body upon the adoption of the new Constitution : 

'In Congress, Saturday, September 13, 1788. 

'On the question to agree to the following proposition, it 
was resolved in the affirmative by the unanimous votes of 
nine States, viz., of New Hampshire, Massachusetts, Con- 
necticut, New York, New Jersey, Pennsylvania, Virginia, 
South Carolina and Georgia. 

' Whereas, the Convention assembled in Philadelphia, 
pursuant to the resolution of Congress of the 21st Febru- 
ary, 1787, did, on the 17th of September in the same year, 
report to the United States in Congress assembled, a Con- 
stitution for the people of the United States; whereupon 
Congress, on the 28th of the same September, did resolve 
unanimously, " That the said report, with the resolutions 
and letter accompanying the same, be transmitted to the 
several Legislatures, in order to be submitted to a Conven- 
tion of Delegates chosen in each State by the people 
thereof, in conformity to the resolves of the Convention 
made and provided in that case:" and whereas, the Con- 
stitution so reported by the Convention, and by Congress 
transmitted to the several Legislatures, has been ratified 
in the manner therein declared to be sufficient for the 
establishment of the same, and such ratifications duly au- 
thenticated, have been received by Congress, and are filed 
in the office of the Secretary; therefore, 

1 Besolved, That the first Wednesday in January next be 
i;he day for appointing electors in the several States, which 
before the said day shall have ratified the said Constitu- 
tion : that the first Wednesday in February next be the 
day for the electors to assemble in their several States and 
vote for a President: and that the first Wednesday in 
March next be the time, and the present seat of Congress 

1 Elliot's Debates, Yol. i, pp. 334-335. 



144 POLITICAL AND CONSTITUTIONAL LAW 

the place, for commencing proceedings under the said 
Constitution/ 

86. Disso- Before the close of July, 1788, eleven of the thirteen 
lution of the states, namely, in the order of their action, Delaware, 
old and estab- Pennsylvania, New Jersey, Georgia, Connecticut, Massa- 
.r . chusetts, Maryland, South Carolina, New Hampshire, Vir- 

ginia, and New York, had severally adopted the new con- 
stitution of the union, each for itself, and as a part of its 
own political system. Thus the first confederation of the 
states was peaceably dissolved, and a new one formed : 
not by a minority of their number, indeed, nor yet by the 
unanimous consent of all (as the original compact seemed 
to require), 1 but by a majority of more than three-fourths, 
and certainly sufficient for this or for any other purpose. 
On Wednesday, the 4th of March, 1789, in the thirteenth 
year of American independence, the new government was 
inaugurated, and commenced operations, at the City of 
New York. The time of its commencement is wrapt in no 
mystery. In a case which presented the point for decision 
to the Supreme Court of the United States, Chief Justice 
Marshall said : — ' Both Governments could not be under- 
stood to exist at the same time. The new Government did 
not commence till the old Government expired. It is appar- 
ent that the Government did not commence on the Constitu- 
tion being ratified by the ninth State j for these ratifica- 
tions were to be reported to Congress, whose continuing 
existence was recognized by the Convention, and who 
were requested to continue to exercise their powers for 
the purpose of bringing the new Government into opera- 
tion. In fact, Congress did continue to act as a Govern- 
ment until it dissolved on the first of November by the 
successive disappearance of its members. It existed po- 
tentially until the second of March, the day preceding that 
on which the members of the new Congress were directed 
to assemble/ 2 

At this time, North Carolina and Bhode Island both 
stood apart from the union, each in its full political in- 

1 See Art. xm of the Articles of Confederation. 
2 Owings v. Speed, ei al., 5 Wheat. 420-422. 



OF THE UNITED STATES. 145 

tegrity, as a free, sovereign and independent state j their 
former union with the others having been dissolved, either 
with or without their consent, and they having refused or 
at least delayed to ratify the new constitution. The new 
government accordingly proceeded to deal with them, in all 
respects, as foreign states : to enact that the manufactures of 
those states should be considered as foreign, and that the acts 
laying a duty on goods imported, and on tonnage, should 
extend to them. Commerce with them was foreign com- 
merce; and the inconveniences arising from their situa- 
tions and a foreign trade with their former allies, caused 
them to reflect upon the advantages offered by the union, 
and finally to give their assent and ratification to the new 
constitution : their several ratifications taking place, that 
of North Carolina, on the 21st of November, 1789, 1 and 
that of Ehode Island, on the 29th of May, 1790. 2 So that, 
in relation to them, the present government of the United 
States commenced operation at different dates, and not, as 
with respect to the others, on the 4th of March, 1789. 



.(3 A) OF THE POWER TO AMEND THE FEDERAL CONSTI- 
TUTION, AND THE SEVERAL AMENDMENTS THERETO. 

The all-important question, by whom, and in what man- g §6. a. 
ner, the federal constitution was framed and established, is Mode of es- 
conclusively answered, and forever put at rest, the moment tablishing the 
we turn to the records of sovereign legislation to which ori S mal - 
our attention has just been directed. That constitution 
was, as we have seen, framed and proposed by the sole 
authority of the several states; — in the words of the men 
who framed it, and of the instrument itself, 'Done in con- 
vention by the unanimous consent of the states present/ 3 
"What then ? by what means did it become the organic law 
of the union ? As it came from the hands of the conven- 

1 Elliot's Debates, Vol. I, p. 333. 

2 Id. p. 334. 

3 The last section of the last article. 



146 POLITICAL AND CONSTITUTIONAL LAW 

tion, it was a mere proposition for 'a more perfect union/ 
upon the terms therein contained; and 'the ratification of 
the conventions of nine states was to be sufficient for its 
establishment, between the states so ratifying the same/ 1 
The convention proposed that ' it be submitted to a con- 
vention OF DELEGATES, CHOSEN IN EACH STATE BY THE PEOPLE 

thereof, under the recommendation of its legislature, for 
their assent and ratification/ 2 It was accordingly so sub- 
mitted, as we have seen, and finally ratified, ' ordained and 
established/ by conventions so chosen, and acting in their 
several, distinct, sovereign and independent capacities. 3 

| 87. Mode It might very naturally seem, that any amendment, or 
of amending, alteration, of this organic compact of union, should be 
framed and established in precisely the same way, by the 
very same means, and with all the precautions and solemni- 
ties, which were adopted in framing and establishing the 
original. And had this principle of universal law been 
embodied in the original itself, as it came from the hands 
of the general convention of the states, it might have as- 
sured the system against all innovations or changes of a 
purely partisan character. 

The method of amendment provided by the instrument 
itself, is given in these words: — 'The congress, whenever 
two thirds of both houses shall deem it necessary, shall 
propose amendments to this constitution, or, on the ap- 
plication of the legislatures of two-thirds of the several 
states, shall call a convention for proposing amendments, 
which, in either case, shall be valid to all intents and pur- 
poses, as part of this constitution, when ratified by the 
legislatures of three-fourths of the several states, or by 
conventions in three-fourths thereof, as the one or the 
other mode of ratification may be proposed by congress ; 
provided that no amendment which may be made prior to 
the year one thousand eight hundred and eight shall in any 
manner affect the first and fourth clauses in the ninth sec- 

1 The concluding article. 

2 Letter of the General Convention, ante, \ 83. 

* See the several Ordinances of Ratification, under \ 85, ante. 



OF THE UNITED STATES. 147 

lion of the first article ; and that no state, without its con- 
sent, shall be deprived of its equal suffrage in the senate/ * 

By this provision, as is seen at once, the discretionary \ 87. a. Its 
power is given to congress, not only to frame and propose defect, 
.amendments of the common organic law, which amend- 
ments may wholly new-model the government of the 
union, and even the governments of the several states, but 
also the power to choose the most available mode of 
securing their ratification, by further proposing that the 
state legislatures, not the people themselves, shall finally 
act upon them: a mode of ratification which, however 
conformable to the nature of the union under the original 
articles of confederation, which articles were sanctioned 
only by the state legislatures, is wholly at variance with 
the principle of the sovereignty of the people of each state, 
on which the union is at present founded. It should be 
•observed, that the power to word and propose amendments, 
expressive of the sovereign will, is a positive and not a 
negative power, in itself of the highest importance, and 
one in the exercise of which, all the means and precautions 
that could have insured a truthful expression of the will 
of the sovereigns, should have been rendered constitu- 
tionally necessary. The power to reject proposed amend- 
ments, is a negative power; and it amounts to nothing ex- 
cept a power to prevent amendments. Add to this, that 
not even the safeguards of the state constitutions, respect- 
ing either the concurrence of two successive legislatures 
in the proposal of amendments, or the popular mode of 
ratification, have been preserved. The binding force of 
the original articles of union, was often questioned, be- 
cause they 'never had a ratification by the people/ 2 It 
was urged that delegated powers could not be re-delegated 
by those to whom delegated. Of what greater force are 
^amendments, made by the state legislatures, and never 
submitted to the people ? An amendment to the federal 

1 Const. U. S. Art. v. 

^ The Federalist, No. 22, p. 103; No. 43, p. 205. 



148 POLITICAL AND CONSTITUTIONAL LAW 

constitution, may have (or assume to have) the effect to 
wholly divest the people of each state of the absolute 
sovereignty, the supreme control of the right of suffrage,, 
and render its further exercise permanently dependent 
upon the will of their federal representatives; as in the 
case of the fifteenth amendment to that constitution. 1 
Will any pretend that such an amendment, an amendment 
that destroys, can have the force of an organic expression 
of the sovereign will by the people themselves ? If so,. 
he must be prepared to maintain, that, under the constitu- 
tion, the delegated power is superior to the original and 
inalienable sovereignty of the people, by virtue of which 
it exists j the created is above the creator ; the govern- 
ment rises to absolute power, and the people sink to the 
condition of slaves. If he cannot maintain this doctrine,. 
he will have to admit that amendments so made, can have 
no effect upon the paramount sovereignty of the people. 
The sovereignty of government, or the sovereignty of the 
people, the one or the other, must inevitably prevail. 

3 87. I. A I n a un i° n of states, as was formerly shown, the essen- 
limit to the tial internal sovereignty of each, being inalienable, is re- 
power of served to itself. This fixes a limit to the power of amend- 
amendment. meir t. ;^ot even the people themselves can alien their 
essential liberty or sovereignty, so as to vest it in their 
political government, and make that government sov- 
ereign. This is the fundamental principle of our political 
system. How then can their government, not their gov- 
ernment but the legislative branch of their government, 
divest the people of their essential sovereignty? or, which 
is the same, confer upon another people, or another gov- 
ernment, those original powers which it does not possess 
and cannot control ? Suppose the people of this country 
were one political body, one single state, with one' consti- 
tution, and one government; and that government were 
empowered to amend the constitution. "Would any amend- 
ment, divesting the people of the paramount sovereignty, 
and vesting it in the government, or in any other people 

iSee^os*&|164tol72. 



OF THE UNITED STATES. 149 

or government, be a valid amendment ? So long as we 
-adhere to the principle of the sovereignty of the people, 
there must, as is obvious, be this limitation to the power 
of amendment. 

An unlimited power to amend or change the constitu- 
tion, as vested in government or any or all of the depart- 
ments of government, means nothing else than the para- 
mount sovereignty of government itself, and the unlimited 
subjection of the people thereto. Under a government 
possessed of such power, the right of suffrage, the essence 
of the sovereignty of a people, ceases to be a right, and 
becomes a mere privilege : the government itself is the 
source, and the only source, of the highest rights which 
the people can enjoy. 

Let us for a moment observe the sovereign conflict here 
involved. Not any single one of the state legislatures, 
nor all of them combined, can change the constitution of 
a particular state, by way of amendment thereto. And 
why is this ? Because the people, in each and in all of 
the states, designed to establish and firmly secure the fun- 
damental principle of constitutional government; that 
* All power is inherent in the people, and all free govern- 
ments founded in their authority/ But three-fourths of 
the state legislatures, by way of amendment to the federal 
constitution, may wholly abolish the state constitutions, 
the state governments, and even the states themselves ! ! ! 
Is it sought to avoid this paramount political absurdity ? 
Then a limit to the power of amendment must be assumed. 
And what is that limit ? It can be none other than that 
which is furnished by our fundamental political maxim, 
that ' All power is inherent in the people, and all free 
governments founded in their authority ;' from which it 
obviously follows, that no amendment can ever be made 
to our constitutions, which in any way affects the para- 
mount sovereignty, or changes the basis of the political 
system. Assuming that our union is a union of republi- 
can states, that is, of political communities, each of which 
communities consists of a body of electors in whom the 
supreme power resides, no amendment to the federal 



150 POLITICAL AND CONSTITUTIONAL LAW 

constitution, or even to the state constitutions, can ever 
be made, which affects the right of each body of electors 
to make and prescribe the election law that governs the 
expression of their sovereign will ; for the right to make 
and prescribe that law, is of the essence of their political 
existence, and cannot be exercised by another authority, 
except to their own destruction, and the consequent de- 
struction of the basis of the union. Assuming that, on 
the other hand, our union is a union of all our people in a 
single republican state, that is, in one political community, 
consisting of a single body of electors in whom the su- 
preme power resides, no amendment to their constitution 
can then be made, which affects their right to make and 
prescribe their election law ; because, if that right be 
vested in their government, they cease to be sovereign, 
the government becomes sovereign, the foundation is de- 
stroyed, and the system overturned. If that right be 
vested in another people or another government, the 
same result must as certainly follow. 

\ 88. Im- Against the policy of changing our original constitutions, 
policy of very strong reasons were furnished by those to whom we 
amendments. owe t hem. 'Notwithstanding the success which has at- 
tended the revisions of our established forms of govern- 
ment, and which does so much honor to the virtue and 
intelligence of the people of America, it must be confessed, 
that the experiments are of too ticklish a nature to be un- 
necessarily multiplied. We are to recollect, that all the 
existing constitutions were formed in the midst of a danger 
which repressed the passions most unfriendly to order and 
concord j of an enthusiastic confidence of the people in 
their patriotic leaders, which stifled the ordinary diversity 
of opinions on great national questions; of a universal 
ardor for new and opposite forms, produced by a universal 
resentment and indignation against the ancient govern- 
ment; and whilst no spirit of party, connected with the 
changes to be made, or the abuses to be reformed, could 
mingle its leaven in the operation. The future situations 
in which we must expect to be usually placed, do not pre- 



OF THE UNITED STATES. 151 

sent any equivalent security against the danger which is 
apprehended/ 1 

It is worthy of remark, that not till within a very recent 
period, were amendments ever proposed, or sought to be 
made, by a dominant faction or political party. For seventy 
years, the spirit of party, against ' the baneful effects ' of 
which the immortal Washington warned his countrymen, 2 
had never made or attempted to make its partisan schemes 
a part of the organic law ; a precedent which, if pursued, 
must end in our political self-destruction, had not been 
given. At length, however, we have a series of amend- 
ments, proposed by the dominant party in congress, and 
carried through the state legislatures, not only by a strict 
party vote in each, but also, in some, by means of a power 
assumed by congress to ' reconstruct ' the states ! Another 
political party, sooner or later, will come into power. What 
then ? The constitution must be amended, and made to 
express their partisan views ! Where then is our boasted 
security against the tyranny of factions and majorities? 
Or is the tyranny of two or three hundred congressional 
despots, to-day of one party, and to-morrow of another, 
to take the place of our constitutional government ! 

The several amendments to the federal constitution, \ 89. 

which now form part of that instrument, are the following : Amendments 

now establish- 
ed. 
AMENDMENTS TO THE CONSTITUTION OF THE 
UNITED STATES. 

Article I. Congress shall make no law respecting an 
establishment of religion, or prohibiting the free exercise 
thereof; or abridging the freedom of speech, or of the 
press; or the right of the people peaceably to assemble 
and to petition the government for a redress of grievances. 3 

1 The Federalist, No. 49, p. 284. See also \ 82, ante. 

2 Washington's Farewell Address. 

3 The first ten of these amendments may be considered as parts of the 
original, having in substance been proposed by the states at the time of 
their adopting the constitution. See the amendments proposed in the 
Ordinances of Ratification, ante, \\ 85 to 86. 



152 POLITICAL AND CONSTITUTIONAL LAW 

Art. II. A well-regulated militia being necessary to the 
security of a free State, the right of the people to keep and 
bear arms, shall not be infringed. 

Art. III. 2sTo soldier shall, in time of peace, be quartered 
in any house without the consent of the owner; nor in 
time of war, but in a manner to be prescribed by law. 

Art. IY. The right of the people to be secure in their 
persons, houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated; and no war- 
rants shall issue but upon probable cause, supported by 
oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized. 

Art. Y. ~No person shall be held to answer for a capital 
or otherwise infamous crime, unless on a presentment or 
indictment of a grand jury, except in cases arising in the 
land or naval forces, or in the militia when in actual ser- 
vice in time of war or public danger; nor shall any per- 
son be subject for the same offence, to be put twice in 
jeopardy of life or limb; nor shall be compelled, in any 
criminal case, to be a witness against himself; nor be de- 
prived of life, liberty, or property, without due process of 
law; nor shall private property be taken for public use 
without just compensation. 

Art. YI. In all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial, by an impar- 
tial jury of the State and district wherein the crime shall 
have been committed, which district shall have been pre- 
viously ascertained by law, and to be informed of the 
nature and cause of the accusation; to be confronted with 
the witnesses against him; to have compulsory process for 
obtaining witnesses in his favor; and to have the assistance 
of counsel for his defence. 

Art. YII. In suits at common law, where the value in 
controversy shall exceed twenty dollars, the right of trial 
by jury shall be preserved; and no fact tried by jury shall 
be otherwise re-examined in any court of the United States 
than according to the rules of the common law. 

Art. YIII. Excessive bail shall'not be required, nor ex- 



OF THE UNITED STATES. 153 

cessive fines imposed, nor cruel and unusual punishments 
inflicted. 

Art. IX. The enumeration in the Constitution of certain 
rights, shall not be construed to deny or disparage others 
retained by the people. 

Art. X. The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people. 1 

Art. XI. The judicial power of the United States shall 
not be construed to extend to any suit in law or equity 
commenced or prosecuted against one of the United States 
by citizens of another State, or by citizens or subjects of 
any foreign state. 2 

Art. XII. Sec. 1. The electors shall meet in their re- 
spective States, and vote by ballot for President and Vice 
President, one of whom, at least, shall not be an inhabitant 
of the same State with themselves; they shall name in their 
ballots the person voted for as President, and in distinct 
ballots the person voted for as Vice President; and they 
shall make distinct lists of all persons voted for as Presi- 
dent, and of all persons voted for as Vice President, and of 
the number of votes for each, which list they shall sign 
and certify, and transmit sealed to the seat of government 
of the United States, directed to the President of the 
Senate: the President of the Senate shall, in the presence 
of the Senate and House of Eepresentatives, open all the 
certificates, and the votes shall then be counted; the per- 
son having the greatest number of votes for President shall 
be the President, if such number be a majority of the whole 
number of electors appointed ; and if no person have such 
majority, then from the persons having the highest num- 
ber, not exceeding three, on the list of those voted for as 
President, the House of Eepresentatives shall choose imme- 
diately by ballot the President. But in choosing the Presi- 
dent, the votes shall be taken by States, the representation 
from each State having one vote; a quorum for this purpose 
shall consist of a member or members from two-thirds of 

1 These, the first ten amendments, were ratified in 1791. 
2 Adoptedinl798. 



154 POLITICAL AND CONSTITUTIONAL LAW 

the States, and a majority of all the States shall be neces- 
sary to a choice. And if the House of Eepresentatives 
shall not choose a President whenever the right of choice 
shall devolve upon them, before the fourth day of March, 
next following, then the Yice President shall act as Presi- 
dent, as in the case of the death or other constitutional dis- 
ability of the President. 

Sec. 2. The person having the greatest number of votes 
as Yice President, shall be the Yice President, if such 
number be a majority of the whole number of electors ap- 
pointed; and if no person have a majority, then from the; 
two highest numbers on the list, the Senate shall choose- 
the Yice President: a quorum for the purpose shall consist 
of two-thirds of the whole number of senators, and a ma- 
jority of the whole number shall be necessary to a choice.. 

Sec 3. But no person constitutionally ineligible to the* 
office of President shall be eligible to that of Yice Presi- 
dent of the United States. 1 

Art. XIII. Sec. 1. Neither slavery nor involuntary ser- 
vitude, except as a punishment for crime whereof the party 
shall have been duly convicted, shall exist within the; 
United States, or any place subject to their jurisdiction. 

Sec. 2. Congress shall have power to enforce this article, 
by appropriate legislation. 2 

Art. XIY. Sec. 1. All persons born or naturalized in the- 
United States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the State wherein they 
reside. No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of* 
the United States ; nor shall any State deprive any person, 

1 ' At the fourth Presidential election, Thomas Jefferson and Aaron; 
Burr were the democratic candidates for President and Yice President.. 
By the electoral returns they had an even number of votes. In the; 
House of Eepresentatives, Burr, by intrigue, got up a party to vote for 
hirn for President ; and the House was so divided that there was a tie. 
A contest was carried on for several days, and so warmly, that even sick 
members were brought to the House on their beds. Finally one of 
Burr's adherents withdrew, and Jefferson was elected by one majority — 
which was the occasion of this twelfth article.' Adopted in 1804. 

2 Adoptedinl865. 



OF THE UNITED STATES. 155 

of life, liberty, or property, without due process of law,, 
nor deny to any person within its jurisdiction the equal 
protection of the laws. 

Sec. 2. Bepresentatives shall be apportioned among the- 
several States according to their respective numbers,., 
counting the whole number of persons in each State, ex- 
cluding Indians not taxed. But when the right to vote at 
any election for the choice of electors for President and 
Yice President of the United States, representatives in 
Congress, the executive and judicial officers of a State, or- 
the members of the Legislature thereof, is denied to any 
of the male inhabitants of such State, being twenty-one 
years of age, and citizens of the United States, or in any 
way abridged, except for participation in rebellion or 
other crime, the basis of representation therein shall be* 
reduced in the proportion which the number of such male 
citizens shall bear to the whole number of male citizens, 
twenty-one years of age in such State. 

Sec. 3. No person shall be a senator or representative 
in Congress, or elector of President and Yice President,, 
or hold any office, civil or military, under the United 
States, or under any State, who, having previously taken 
an oath as a member of Congress, or as an officer of the 
United States, or as a member of any State legislature, or 
as an executive or judicial officer of any State, to support 
the Constitution of the United States, shall have engaged 
in insurrection or rebellion against the same, or given aid 
or comfort to the enemies thereof. But Congress may,, 
by a vote of two-thirds of each House, remove such dis- 
ability. 

Sec 4. The validity of the public debt of the United 
States, authorized by law, including debts incurred for- 
payment of pensions and bounties for services in suppress- 
ing insurrection or rebellion, shall not be questioned. 
But neither the United States norany State shall assume 
or pay any debt or obligation incurred in aid of insurrec- 
tion or rebellion against the United States, or any claim 
for the loss or emancipation of any slave ; but all suck 



156 POLITICAL AND CONSTITUTIONAL LAW 

debts, obligations, and claims, shall be held illegal and 
void. 

Sec. 5. Congress shall have power to enforce, by appro- 
priate legislation, the provisions of this article. 1 

Art. XY. Sec. 1. The right of citizens of the United 
States to vote shall not be denied or abridged by the 
United States, or by any State, on account of race, color, 
or previous condition of servitude. 

Sec. 2. Congress shall have power to enforce this article 
by appropriate legislation. 2 



(Zga) OF THE POLITICAL SYSTEM ESTABLISHED BY THE 
ORGANIC LAW: AND HEREIN, FIRST 

(Ua) OF THE STATES AS BODIES POLITIC, OR THE 'PEO- 
PLE' AS ELECTORS. 

I 90. Dis- The legislative power of the people, the original war- 
tribution. ran ^ an( j sovereign authority for the constituted order of 
things, has now been traced in all the modes of procedure 
which resulted in establishing the organic law, or political 
constitutions, of the several states and of the United States. 
It remains to be traced, examined and considered, as it ap- 
pears in the political system, to which that law or those 
constitutions have given birth. And here, in the investi- 
gation of that system, as a constituted order of political re- 
lations, I shall examine the nature and character, first, of 
the states as bodies politic ; secondly, of the union of the 
states; and thirdly, of citizenship of the states and of the 
United States. 

I 91. Who < The body politic/ says one of our state constitutions, 

-compose the c Ig r0 RMED BY A VOLUNTARY ASSOCIATION OF INDIVIDUALS. It 

is a social compact, by which the whole people covenants 
with each citizen, and each citizen with the whole people, 



states. 



1 Adopted in 1868. 

2 Adopted in 1870. 



OF THE UNITED STATES. 157 

that all shall be governed by certain laws for the common 
good/ x 

The right of self-government, considered as a natural 
right, equally inheres in every individual of the human 
race. And thus the original source and unfailing fountain 
of every species of political authority, is man himself, hu- 
manity. But since the human race must be divided into 
many different political societies; and since each of these 
societies must have a right to govern itself, it follows, as 
of course, that each must have a right to determine what 
character of persons shall be of its number, and to pre- 
scribe the conditions upon which its members shall have a 
voice in its common government. There must, then, in 
every political society, be some who are clothed with the 
absolute sovereignty, and some who are excluded there- 
from ; some who are members of the political state, and 
some who are members of the civil state merely. It is 
simply impossible that all should be clothed with political 
authority; whether in an equal, or in an unequal degree : 
however true it may be that all are equal in natural right. 
In a system of popular government, such as are members 
of the political state, can only be identified and known as 
a body of political co-equals ; that is, as a body of electors ; 
who compose the political state, as distinguished from the 
mass of citizens, who are members merely of the civil state, 
and have no voice in public affairs. Thus a state or politi- 
cal community, such as one of the United States, is a body 
of political co-equals, commonly called 'the people/ in 
whom, as electors, the paramount sovereignty, or supreme 
and uncontrollable authority, at all times resides, and 
whose sovereign will, as expressed and proclaimed by them 
in their written constitution of government, is their or- 
ganic law, and the bond of their political existence. The 
United States are therefore a community of such states, 
united by a federal constitution, and a general govern- 
ment founded therein. This is the doctrine held by the 
Supreme Court of the United States. ' A State/ says that 
court, ( in the ordinary sense of the [Federal] Constitution, 

1 Const. Mass. Preamble. 



158 POLITICAL AND CONSTITUTIONAL LAW 

is a political community of free citizens, occupying a territory 
of defined boundaries, and organised under a government 
sanctioned and limited by a written Constitution and es- 
tablished by the consent of the governed. It is the Union 
of such States, under a common Constitution, which forms 
the distinct and greater political unit which that Consti- 
tution designates as the United States/ 1 

I 92. "Who It is the fundamental maxim of each of our state consti- 
'the people' tutions, that 'all political power is inherent in the people/ 
that is, in i the people ' as the body of electors composing 
the political state ; for no distinction exists between a 
state and 'the people' of a state, in the sense of that 
maxim. By a state, we do not mean the government 
of a state, much less do we mean the legislature, the 
executive, or the judiciary of a state; we mean the 
citizen-electors who compose the state, and who are, so to 
speak, integral parts of it, altogether forming a body poli- 
tic? By 'the people/ speaking of the people in their 
political character and capacity, none other is or can be 
properly meant, than the body of electors, the political 
state itself; this body being the original and only source 
of political power, the life and soul of the civil state, and 
the only body or state that can ever exist as absolutely 
sovereign, free and independent, in any system of govern- 
ment by the people. Indeed, no other sort or kind of 
political society or state, than this, on the one hand, of a 
sovereign body of electors, and that on the other, of a 
union or confederation of such sovereign bodies, has ever 
been known in our American political system. And hence 
it is clear, that the phrase 'We, the people/ as used in the 
constitution of a state, means We, the body of electors of 
or composing the state; and as used in the constitution of 
the United States, means We, the bodies of electors, of 
or composing the United States. 3 

1 Texas v. White, 7 Wall. 721. 

2 3 Dall. 93— -per Justice Iredell. 

3 See the original reading of the Preamble, \ 109. As a notable in- 
stance of the variation in the meaning of words and phrases, so often 



OP THE UNITED STATES. 159 

In such a system it necessarily follows, that all the 
■powers of a public nature or political character, enumer- 
ated and denned as powers of government, can be nothing 
more than delegated powers, confided to agents chosen by 
and from among the electors themselves for government 
purposes; powers not of right belonging to government 
or p ublic officials, but belonging to the sovereigns them- 
selves, the single body, or several bodies, of electors, 
whose will alone is law. ISTo government, therefore, in 
such a system, can claim to be sovereign, or claim to exist 
by virtue of any inherent power; the powers which are 
•delegated to it, however high and sovereign in their na- 
ture and source, being contingent, and liable at all times 
to be wholly resumed and otherwise vested by the several 
^bodies of electors, who themselves are the absolute sov- 



'effected by the changing current of events, we may note the fact that 
the name of our federal union did not, as originally employed, convey 

.the various meanings which, to a greater or lesser extent, are now asso- 
ciated with it. ' The United States of America ' was first adopted as the 
proper name of the original Confederation of the States, by the Con- 
gress of 1776. It originally meant, not the states themselves, nor the 

^people of America, nor any single political body, but the confederacy, 

THE LARGER SOCIETY OF WHICH EACH STATE IN ITS SOVEREIGN CHARAC- 
TER and capacity became A member. And such indeed is now its 
meaning, and its only meaning in our political law. So, in like manner, 

•* The people of the United States,' originally meant and properly means 
the bodies of electors composing the States United. The union referred 
to was and yet is, not a union of individuals, but one of sovereign polit- 
ical communities as such. The people or peoples composing these 

..sovereign communities, not the people of America as consolidated or 
compounded into one common mass, were and are yet intended by ' The 
people of the United States.' The union formed was just such a union 
as might have been formed, or may yet be formed, of any other sov- 
ereign and independent states- The principle involved may be aptly 
illustrated by extending the scheme to all civilized states. Suppose, 
then, a United States of the civilized world. This might be established, 

Just as our union was established, by each state assenting thereto. The 
principle would bethe same. "Would each remain sovereign ? Would 
-the government of such union absorb all power ? Certainly each would 
continue sovereign concerning such affairs as peculiarly related to itself. 

-It could not otherwise exist as a state. Principiis obsta. 



160 POLITICAL AND CONSTITUTIONAL LAW 

I 93. The If it be, as we have seen it is, the fundamental principle 
'people' sov- of our constitutions, that ' all political power is inherent 
ereign. j n an( ^ derived from the people/ it is necessary to end with 

the verification of this principle, in every view of our po- 
litical system; or contradiction, confusion, and failure in 
the science, and consequently injustice in the practice, of 
government, must be the result. Now it has never been 
questioned, and cannot be denied, that the word ' people/ 
in our constitutions, means electors. It is equally certain 
that there are, in our system, as many separate and inde- 
pendent bodies of electors, as there are states in the union. 
It must therefore be admitted as an unquestionable truth,, 
that under our constitutions, the paramount sovereignty, 
the supreme, unlimited, and uncontrollable authority, re- 
sides in ' the people ' as separate and independent bodies 
of electors or states. Indeed ! of what validity would be 
those original ordinances of ratification designed to ordain 
and establish the federal constitution, if traceable to any 
authority not absolutely sovereign and supreme ? "Why 
speak of the adoption and ratification of the recent amend- 
ments to that constitution, if the state legislatures, to which 
they were submitted, represented authorities or powers 
subordinate to any other power ? Why ask the states, 
either by themselves or their representatives, to ratify a 
proposed amendment, if they be not the source of all 
power and authority, superior to, able to create, and com- 
petent to destroy, the union and the government of the 
union t x 

\ 94. « The The constitution of the United States, neither declares 
people ' de- w ho < We, the people/ are, nor prescribes the rights or 
termme their privileges of electors, nor confers upon government, state 
or federal, any authority in this respect. It is wholly 
silent on the subject, further than to adopt the provisions 
of each state constitution, by declaring that ' the electors 
[of representatives in Congress] shall have the qualifica- 
tions requisite for electors of the most numerous branch of 

1 On the sovereignty of the people of the states, see post, \\ 134-136. 



OF THE UNITED STATES. 161 

the state legislature/ 1 No power is given to the federal 
government, the exercise of which can ever affect the 
question, who electors shall be, or what their rights or 
qualifications. In each of the several states, the body of 
electors, who constitute the political state, determine for 
themselves, and have always determined and held the 
right to determine, what character and description of per- 
sons shall be of their number. The regulation of this, in 
its very essence the first and highest of sovereign rights, 
is one of the powers which 'the people' of each state have 
always reserved to themselves ; and so reserved for the 
best of reasons ; — that if once the sovereign cedes his right 
to determine who the sovereign rightfully is, he can thence no 
longer be sovereign ; he cedes the highest attribute, the very 
essence of sovereignty itself, and sinks himself to the level 
and condition of a subject. He cannot therefore cede this 
right. No greater absurdity could well be conceived, than 
that the sovereign should first create the government, and 
then this creature turn to work and create its creator. 2 

Here, then, we find the sovereign, and the only sov- 
ereign that can ever be known in any system of self-gov- 
ernment. This sovereign is, in each of the states, the 
body of electors, which we call the political state. Hence 
we say, the state is sovereign, and our political union, a 

UNION OF SOVEREIGN AND INDEPENDENT STATES ) which is the 

same as to say, it is a union of sovereign and independent 
bodies of electors. All the confusion of ideas, all the 
disagreements and conflicting views and opinions, concern- 
ing our political system, may be traced to the simple fact 
that its cardinal principle, that 'all power is inherent in 
the people ' as sovereign and independent bodies of elec- 
tors, has been either wilfully or ignorantly perverted. 
In what manner or capacity have < the people ' invariably 
acted, from the first to the last of their sovereign enact- 

1 Const. TJ. S. Art. I, \ 2, 1. 

2 And yet, — behold the reconstmction of the states by the federal gov- 
ernment I Perhaps it is prudent to fear, that the trial of the theory of 
self-government in America, will afford in the end an unanswerable ar- 
gument in favor of monarchy. 

K 



162 POLITICAL AND CONSTITUTIONAL LAW 

ments ? Behold the records ! Not one of these records is 
that of an act of 'the people of America/ 'the people of 
the United States/ or 'the nation/ in the character or 
capacity of a single political body. From the first to the last, 
all that has ever been done by any authority, has been 
done by authority of the several bodies of electors, com- 
posing and being the several states. Not a measure of the 
Eevolution can be instanced, the authority for which is 
not ultimately found in the separate and independent ac- 
tion of one or more of these several bodies of electors. 
Nor has any other law than the constitution of each state, 
that is, of each several body, ever determined who these 
electors at any time were or might thereafter be. 

\ 94. a. A In this connection, it is proper to notice the clause of 
power of con- the federal constitution, concerning the power of congress 
gress. t ma ke or alter regulations affecting elections. * The times, 

places and manner of holding elections for senators and rep- 
resentatives [in congress], shall be prescribed in each state 
by the legislature thereof: but congress may at any time 
by law make or alter such regulations, except as to the 
places of choosing senators/ 1 This, be it observed, is a 
delegation of power to congress, to ' make or alter such 
regulations ' as ' shall be prescribed in each state by the 
legislature thereof ' concerning ' the times, places and man- 
ner of holding elections for representatives, and the times and 
manner of holding elections for senators/ in the congress of 
the United States ; and as such, is equivalent to a positive 
denial of the power of congress, ' to make or alter such 
regulations' as concern neither l the times, places and man- 
ner of holding elections for representatives/ nor 'the times 
and manner of holding elections for senators/ in congress. 
And this confirms the proposition, above laid down, that 
no power is vested in the federal government, the exercise 
of which can ever affect the question, who the electors shall 
be, or what their rights or qualifications. 

The reason for granting to congress the power of regu- 

1 Const. U. S. Art. I, \ 4. 



electors. 



OF THE UNITED STATES. 163 

lating elections for members of that body, was, that an 
■exclusive power of regulating elections for the federal 
government, in the hands of the state legislatures, would 
leave the existence of the union entirely at their mercy. 1 
But as no power was given, or could be given, to compel 
an election by the people, nothing was accomplished. 

' Suppose an article had been introduced into the consti- 
tution, empowering the United States to regulate the elec- 
tions for the particular states, would any man have hesi- 
tated to condemn it, both as an unwarrantable transposi- 
tion of power, and as a premeditated engine for the destruction 
"Of the state governments ?' 2 

It is simply self-evident, as a primary condition of a s 95. j m ^ 
union of states, that the people of each state, who them- portance of 
selves are the sovereign, must hold the paramount sov- regulations of 
ereignty of the country, as, and in the character and the ri S nts °f 
capacity of, a self-organized and self-existent body, — that is 
to say, in the character and capacity of electors, — or for- 
ever cease to be the source of power. To interfere with 
the sovereign right of each body of electors, to determine 
who, or what character and description of persons, shall 
be of their number, is to strike at the heajt of the sov- 
ereign himself; and therefore ought to be judged and 
punished as the highest treason to the country and to the 
Jiberties of the people. 

' In a democracy/ as Montesquieu says, 3 'there can be no 
exercise of sovereignty but by the suffrages of the people, 
which are their own will; now the sovereign's will is the 
sovereign himself. The laws therefore which establish 
the right of suffrage, are fundamental to this government. 
And indeed, it is as important to regulate in a republic, in 
what manner, by whom, to whom, and concerning what, 
suffrages are to be given, as it is in a monarchy to know 

1 The Federalist, No- 59, p. 273. 

2 Ibid. Hamilton. On the power of congress to regulate elections of 
its members, see the Federalist, No. 60, where it is fully considered, and 
".the idea also entertained that its abuse would lead to 'a revolt of the 
.great body of the people, headed and directed by the state governments.* 

3 Spirit of Laws, b. 2, c. 2. 



164 POLITICAL AND CONSTITUTIONAL LAW 

who is the prince and after what manner he ought to gov- 
ern/ The same profound and original writer, relating 
what Libanius says/ ' that at Athens a stranger, who inter- 
meddled in the assemblies of the people, was punished 
with death/ gravely adds, 'this is because such a man 
usurped the rights of sovereignty/ 

The federal constitution declares, as we have seen, 2 that 
'the electors [of federal representatives] in each state shall 
have the qualifications requisite for electors of the most 
numerous branch of the state legislature/ Whatever r 
therefore, the rule adopted by a particular state, as to the 
qualifications of electors of representatives to the house of 
representatives of that state, the same rule applies as to 
electors of representatives to the house of representatives 
of the United States. Of this provision of the federal 
constitution, The Federalist says : — ' The definition of the 
right of suffrage is very justly regarded as & fundamental 
article of republican government. It was incumbent on 
the convention, therefore, to define and establish this 
right in the constitution. 3 To have left it open for the oc- 
casional regulation of congress would have been im- 
proper for the reason just mentioned 7 — that it is 'a fun- 
damental article of republican government. To have sub- 
mitted it to the legislative discretion of the states, would 
have been improper for the same reason; and for the ad- 
ditional reason, that it would have rendered too dependent 
on the state governments, that branch of the federal gov- 
ment which ought to be dependent on the people alone* 
To have reduced the different qualifications in the different 
states to one uniform rule, would probably have been as 
dissatisfactory to some of the states, as it would have been 
difficult to the convention. The provision made by the 
convention appears, therefore, to be the best that lay with- 
in their option. It must be satisfactory to every state; 

^eclam. 17 & 28. 

2 Art. i, \ 2. 

3 Not 'to define and establish this right,' — which the convention never 
attempted to do, — but to adopt some rule concerning it, so far as related 
to representatives in the federal legislature ; which the convention did. 



OF THE UNITED STATES. 165 

because, it is conformable to the standard already established, 
or which may be established, by the state itself. It will be 
safe to the United States; because, being fixed by the state 
constitutions, it is not alterable by the state governments, 
and it cannot be feared that the people of the states will 
alter this part of their constitutions, in such a manner as 
to abridge the rights secured to them by the federal con- 
stitution/ 1 

In relation to this subject, however, the several pro vis- \ 96. Differ- 
ions of the state constitutions are so various and dissimilar, ence of state 
that it is impracticable to recite them at length or to reduce constltutlon s 
them to general propositions containing their substance. cat i ons f 
In one particular, they all agree ; that is, in the exclusion electors, 
of women and minors from the electoral body : and though 
^very male citizen of twenty-one years of age, or upwards, 
-excepting paupers, vagrants, and certain others, are ad- 
mitted to this body in some of the states, the exclusion till 
recently generally extended to all but those of the blood 
of ' ourselves and our posterity/ ' to secure the blessings 
of liberty to whom/ originally was, and still is, the ex- 
pressed object of many of our state constitutions, as well 
as of the constitution of the United States. 

The importance of the elective franchise, is very differ- « 97 0ffi 
■ent in different political systems. In ours, it can only be f electors. 
well understood by considering the sovereign office of a 
body of electors. To this body belongs, all the rights and 
prerogatives of an absolute sovereign. It is charged with 
the highest of sovereign duties known to the political 
state, — the duty of final decision as to how, by what laws, 
and by what agents or agencies the government shall be 
administered. In the discharge of this duty, its counsels 
and efforts are directed chiefly to the attainment of two 
ends : first, the framing and establishing of the organic 
law, and the improvement and perfection thereof by means 
of such amendments thereto as from time to time may ap- 
pear to be necessary; secondly, the prevention of such as 

1 The Federalist, No. 52, p. 243. 



166 POLITICAL AND CONSTITUTIONAL LAW 

are intrusted with authority thereunder from becoming 
oppressors, by causing their seasonable return to private 
life, and investing others with the official trusts which 
have thus become vacant, through stated and regular elec- 
tions. 1 

The members of this body, are not only collectively 
sovereign, considered in relation to other political states,, 
but are also severally and equally sovereign, considered 
merely in relation to each other. They are sovereign co- 
equals: no one can be subject to any other law than that 
which flows from their common consent ; and no one is. 
bound except by the original covenant of their organiza- 
tion, by which the voice of a given majority is to be con- 
sidered as the voice of all ; so far, however, and only so 
far, as it relates to those objects in which all alike are 
equally concerned : for even here, certain inherent and in- 
alienable rights are reserved to every individual ; such at 
least as are always essential to the enjoyment of life, lib- 
erty, and property. 

Each is, moreover, charged with a sovereign duty, a, 
duty the faithful and vigilant performance of which, is the 
only means of securing, maintaining and defending, not 
only the liberties of his fellow countrymen, but also the 
rights and privileges which he himself enjoys. This duty 
is none other than that which a sovereign owes to his 
people and himself. If, knowing the frailties of human 
nature, he finds it neither prudent nor safe to abandon the 
idea of a government of laws, founded in his own free will 
and consent expressed in written constitutions, and the 
solemn oaths of all his ministers to uphold and maintain 
them forever inviolate, he should doubtless possess a 
thorough and accurate knowledge, and, at all times, a clear 
and unclouded memory, not only of the political questions 
of his time, but also of the fundamental laws in which his 
will has been declared, and the nature and extent of his 
own inherent prerogative rights have been ascertained and 
defined. If a man know not his rights, he may be said to 
have no rights. If he know nothing of the nature of sov- 

1 See Bill or Declaration of Rights, ante, p. 81, No. 5. 



OF THE UNITED STATES. 167 

ereign command, or of the principles of political govern- 
ment, it matters not what he be called ; unfit to be even a 
subject, he sinks to the condition of a slave j that which 
through ignorance a man cannot but become, and so long 
as in ignorance cannot but remain. 

If we consider how small a proportion of the people, in m * * . u " 

, x . . ' frage univers- 

any age or country, possess the rare yet requisite qualm- j ° p lim i te( j 

cations for the discharge of the duties of citizen-sovereigns, 
the vast importance of those regulations which relate to 
the qualifications of electors, cannot but be evident ; and 
we shall possibly be led to doubt the solidity of the doc- 
trine of universal suffrage, that all the citizens of a state, 
regardless of character and number, are naturally, sever- 
ally, and equally entitled to a voice, in every resolution of 
the sovereign will. As an abstract principle of natural 
law, — that is, as a principle applicable only to men consid- 
ered apart from political society and positive laws, — it 
must be admitted that all men are naturally equal in right, 
and are, therefore, severally and equally entitled to a voice 
in matters of common concern. But when we examine 
the question of suffrage in relation to a political system, 
we always find that some of the citizens must be excluded 
from the body of electors; and that the question, what 
qualifications shall be sufficient to entitle a man to a voice 
in the sovereign resolutions of that body, must always be 
a question for that body of sovereigns themselves to de- 
termine : their jurisdiction in this particular, being essen- 
tial to their self-existence as a political society or state. 

It was a doctrine of Montesquieu, the acknowledged g 99. Uni- 
prince of political writers, that in republics, it is an essential versal suffrage 
point to fix the number of citizens who are to form the tlie r # uin °* re ~ 
public assemblies. 'At Sparta/ he observes, 'the number pu 
was fixed at ten thousand. But Eome, designed by 
Providence to rise from the weakest beginnings to the 
highest pitch of grandeur ; Eome, doomed to experience all 
the vicissitudes of fortune; Eome, who had sometimes all 
her inhabitants without her walls, and sometimes' all Italy 



168 POLITICAL AND CONSTITUTIONAL LAW 

and a considerable part of the world within them; Borne/ 
he says, ' never fixed the number ; and this was one of the 
principal causes of her ruin.' 1 

It would seem to be essential to everything human, that 
it contain the element of its own destruction. Eepublics 
are founded in the natural equality of men. They there- 
fore tend to the destruction of all distinctions between 
their citizens; the unlimited extension of the right of 
suffrage \ and the entire equality of political opinions. 
The judgment expressed by the vote of one must be of 
equal authority with that expressed by the vote of another. 
If the wise and virtuous control the ignorant and vicious, 
the idea of equality is abandoned, the commonwealth saved. 
If the ignorant and vicious prevail, neither justice nor 
virtue, but fraud, corruption, bribery and perjury, fill the 
highest public trusts. 

Thus republics are doomed to fall by the very extension 
of the liberty they enjoy. 

During the elevation and splendor of the Athenian 
power, the residence of foreigners, and especially of mer- 
chants, we are told, was encouraged ; but the privilege of 
a citizen of Athens, was deemed a very distinguished 
favor. It could only be obtained by the consent and de- 
cree of two successive assemblies of the people, and was 
granted to none but to men of the highest rank and repu- 
tation, or who had performed some signal service to the 
republic. 2 The privilege of a citizen of Eome, was also 
held at first in equal esteem. But towards the decline 
and fall of this, the grandest type of worldly powers, all 
Boman citizens were equal, and all subjects of the empire 
citizens of Borne. That inestimable character was thence 
degraded to an obsolete and empty name. 3 

1 100. A Perhaps against this inherent impulse to self-destruction, 
possible rem- which is naturally common to all republics alike, a partial 
edy. 

1 Spirit of Laws, b 2, c 2. 

2 See Potter's Greek Antiq. Vol. I, pp. 44-45 ; 150. 

3 Gibbon's Decline and Fall of the Roman Empire. Lond. Ed. 1825, 
Vol. 3 c. 44* p. 183. 



OF THE UNITED STATES. 169 

remedy is found in dividing up each body of state electors 
into a very great number of smaller bodies for election 
purposes. Each state is generally divided into counties 
and cities; counties and cities into townships and wards ; 
townships and wards into lesser election divisions : the 
whole body of electors composing a state, being thus 
divided into a great number of smaller bodies, for the 
purpose of polling and ascertaining their votes. This of 
itself is a great security against the evils of universal 
suffrage. But every one knows, if at all familiar with the 
history of popular elections, that something yet remains 
to be done, if the evils they engender are ever to be over- 
come. The constant recurrence of election frauds may 
possibly be checked, by a wise and judicious system of 
registration — if such a system be possible. But frauds 
are not the only evil, nor perhaps the greatest evil, of an 
unlimited extension of the right of suffrage : for, however 
much the cry of frauds is raised by every unsuccessful 
party; wherever the opposing parties have an equal op- 
portunity of watching each other, as is always the case in 
our elections, the frauds on the one side will generally be 
found to balance those on the other. The greatest evil of 
universal suffrage is found in the fact, that it lowers the 
standard of that peculiar political virtue, whatever it may 
be, which is essential to the preservation of the original 
institutions of a state, which always marks the glorious 
period in life of every republic, and the depreciation of 
which is the signal of decay. Against this evil, no remedy 
is found, unless in the partial abandonment of the popular 
suffrage scheme, and the establishment of two or more 
orders of electors, the lower being open for the admission 
of all citizens alike, and the higher being elected by and 
from among the lower, — as in the case N of presidential 
electors, — and being clothed with the exclusive power of 
nominating as well as of electing all public officers, and 
being sufficiently numerous (say as one to thirty or more 
of the inhabitants) to prevent the intrigue and corruption 
of its members. All the advantages of universal suffrage, 



170 POLITICAL AND CONSTITUTIONAL LAW 

and ample security against its evils, might possibly thus- 
be attained. 



(2 h a) OF THE NATURE AND CHARACTER OE THE UNIOK 
—THE ABSOLUTIST OR IMPERIAL THEORY. 

1 101. The Under this head I shall first and particularly inquire,, 
primary ques- what was the grand idea in establishing 'the new consti- 
tution ■ of the United States ? "Was it to form a union of - 
states, or to form a union of individuals ? ' to form a 
more perfect union' of many independent commonwealths r 
which were theretofore imperfectly united, or to form a 
single political state composed of the whole body of the; 
American people? 

In order to a clear understanding of this question, wc 
must have in our minds a fixed idea of what is properly 
meant by a state. "VVe have said that the term, state, in 
our political system, means a body of political co-equals,, 
in whom, as electors, the paramount sovereignty, or su- 
preme and uncontrollable authority, at all times resides,, 
and whose sovereign will, as expressed and proclaimed by 
them in their written constitution of government, is their 
organic law, and the bond of their political existence. It 
will be observed, that the sovereign will of such a body r 
expressed in its constitution, and executed as expressed, is 
its political sovereignty; which differs only from its natu- 
ral sovereignty, in the fact that it is so expressed and exe- 
cuted ; that therefore it exists, as a political organization,, 
by virtue alone of its political sovereignty; that it is- 
(politically) self-existent ; that it exists and acts by its 
own, and not by some other will ) and that each of the 
political co-equals or members of which it is composed,, 
speaks his will, votes at elections, as one of the body of 
original and absolute sovereigns, by virtue of the organio 
law of that body, and independently of any extraneous- 
authority. The primary question therefore is, Does there 



OF THE UNITED STATES. 171 

exist, under the constitution of the United States, more 
than one of such political bodies ? 

The question admits of only two answers; and all agree 
that the answer to this primary question, must decide the 
character of our political system, and, indeed, every other 
question of principal importance connected therewith. If 
we affirm that in our system, there is only one of such po- 
litical bodies, we are bound to maintain the imperial 
theory, that the United States are one empire, call them a 
nation, or whatever we please. If we say there is more 
than one, we must then adhere to the federal theory, 
that the United States are a community of such bodies, 
united by a federal constitution, and a common govern- 
ment founded therein. A particular examination of each 
of these theories, and of the facts and arguments in sup- 
port of each, is, as is obvious, essential to a just conclusion 
with respect to either. Indeed, a clear understanding of 
both is absolutely essential, on many occasions, to a proper 
apprehension of political questions, and, therefore, of the 
views and opinions of our courts of last resort, whenever 
such questions are before them. It is not too much to say, 
that a person who is ignorant of either of these theories, 
or of the grounds on which they severally rest, will never 
be able to fully understand a judicial decision, in which 
the rights or powers of government, state or federal, are 
drawn in question. Nor is it too much to say, that neither 
has yet been as fully examined in all its bearings, as to 
admit of no further elucidation. 

One of the latest among our political writers, a writer a 102# i^ 
whose abilities are nowhere questioned and nowhere ex- imperial the- 
celled, has given to the public a masterly work in support ory. 
of the ' national ' or (as I think it more appropriately 
termed) imperial or absolutist theory. 1 His doctrine is 

1 ' An Introduction to the Constitutional Law of the United States. By 
John Norton Pomeroy, LL.D., Dean of the Law School, and Griswold 
Professor of Political Science in the University of New York.' 1868. 
I take the peculiar theory in question at the hands of this eminent 
author, because I find it nowhere else so strongly and clearly presented. 
It is ably argued however by many others, and generally held by the 



172 POLITICAL AND CONSTITUTIONAL LAW 

stated in the following propositions : ' That the people of 
the United States is an independent political society, 

WITH ITS OWN ORGANIZATION AND GOVERNMENT, POSSESSING IN 
ITSELF INHERENT AND ABSOLUTE POWERS OF LEGISLATION; 
that IT KNOWS NO SUPERIOR ) that NO OTHER POLITICAL SOCI- 
ETY [or societies] may authoritatively control its legis- 
lation, OR JUDGE OF THE EXTENT TO WHICH THAT LEGISLA- 
TION may be carried ; ' that, ' on the other hand, in respect 
to all these particulars which truly constitute a nation, 
each state must be described in terms the exact opposites 
of those employed in reference to the United States ; each 

STATE is NOT AN INDEPENDENT POLITICAL SOCIETY ; it DOES NOT 
POSSESS IN ITSELF INHERENT AND ABSOLUTE POWERS OF LEGIS- 
LATION ; another political society not only may but must 
control its legislation and judge of the extent to which 
that legislation may be carried ; instead of enjoying at- 
tributes of sovereignty, each state, as a separate politi- 
cal SOCIETY, IS IN A POSITION OF PERMANENT SUBORDINATION/ 1 

The theory of this writer is, that the several states com- 
posing the United States, are the creatures of the one 

BODY POLITIC COMPOSED OF THE WHOLE PEOPLE of the United 

States, and that the powers which they severally possess, 
are delegated to them by that one body politic. The fed- 
eral theory is, exactly the reverse, that the United States, 
as a political union, power or government, is the creature 
of the states, and has no powers but such as the states have 
delegated to it. 

First, then, let us give our attention to the imperial 
theory, the grounds of which were formerly stated. 2 

2 io3. Its This theory, which demands as its only possibility and 
method and support, that the truth of the records of our sovereign 
•object. legislation be boldly contradicted and denied, or that the 

Republicans of our day, whose policy and sentiments are again re-echoed 
from across the Atlantic in the very able work of a German cousin, 
which has just been translated and republished under the title of 'The 
Constitutional and Political History of the United States, by Dr. H. Von 
Hoist, Professor at the University of Freiburg.' 

1 Pomeroy's Constitutional Law, \\ 42 a, 43. 

2 Ante, I 12, pp. 8-10. 






OF THE UNITED STATES. 173 

records themselves be kept out of view, has of late been 
supposed to be absolutely necessary, in order to avoid the 
conclusions of certain extreme advocates of the state- 
rights theory. 1 The fact that the colonies became, by a 
successful attempt at political revolution, sovereign, free 
and independent states, must therefore be denied, whether 
it be true or be false. Thus Mr. Pomeroy : — ' There never 
was, in fact, a moment's interval, when the several states 
were each independent and sovereign/ ' Grant/ says he, 
'that in the beginning, the several states were, in any true 
sense, independent sovereignties, and I see no escape from 
the extreme positions reached by Mr. Calhoun/ 2 It must 
logically follow in his view (I suppose), that, in duty to 
ourselves and to each other, we ought to explicitly deny 
that fact -j deny, also, that the ordinances of ratification, — 
required by the very last article of the federal constitu- 
tion as the only conditions upon which it could ever be- 
come the organic law of the Union, — were the acts of sov- 
ereign bodies ! affirm and pronounce, in consequence, that 
that constitution itself is a mockery and a fraud, of no 
obligation — null and void per se, without any act of nulli- 
fication — because we see no other way to escape the ex- 
treme positions reached by ' the impracticable intellect of 
Mr. Calhoun/ 

It is far from clear, however, that we are driven to ac- 
cept, either the argument of Mr. Calhoun, or the imperial 
theory. To the former, it is a sufficient answer, that it 
strikes no less at the government of a state, than at the 
government of a union of states : that it equally subverts 
all governments alike so far as they are founded in com- 
mon consent. 1 To the latter, we need only to say, that the 
very condition of its possibility, the open denial of what 
we know to be true, is treason to the highest obligation 
of our nature. 

It is conceded by all, that our governments are founded . ^ p ar fc. 

1GS to tllG COH"» 

1 See 1 13 (pp. 10, 11) ante, where the grounds of the state-rights the- . . 
ory are presented. 

2 Pomeroy' s Constitutional Law, \\ 54, 55. 



174 POLITICAL AND CONSTITUTIONAL LAW 

in written constitutions ; and that these constitutions are 
founded in common consent. Call them by whatever name 
we may please, — constitutions, organic laws, sovereign 
compacts, ordinances, statutes, treaties or leagues, — the 
Jact that they rest in the common consent of those who 
made them, cannot be denied. ISTow in order to this com- 
mon consent, there must have been parties, competent to 
consent. Their competency must also have been deter- 
mined, established and made known, by some law, previ- 
ously prescribed. In relation, then, to the federal con- 
stitution, the inquiry must be, first, who were the orig- 
inal PARTIES THERETO ) secondly, BY WHAT LAW WAS THEIR 
CONPETENCY established and made known ? 

First, then, who were the original parties to the fed- 
eral constitution ? In answer to this question, one or 
other of two grounds must be taken ; either, that these 
parties were co-equal and co-independent political societies 
or states, sovereign members of the great commonwealth 
•of nations, and, as such, antecedently bound by no laws 
but the laws of that commonwealth ; or else, that these 
parties were co-equal and co-independent individual elec- 
tors or voters, sovereign members of some political society 
or state, and, as such, antecedently bound by no laws but 
the laws of that state. Which of these grounds is the 
true one? Let history answer. 'We have now to deal 
with plain historical facts, not with theories, nor with dis- 
puted questions of intention. Whatever these facts may 
be, we cannot change them by argument, nor escape from 
their legitimate consequences. I repeat, the condition 
and character of the political society' — of the one sov- 
ereign body politic composed of the whole people of this 
^country — ' prior to, and at the time of, the adoption of 
the Constitution, is a fact, to be ascertained in the same 
manner as any other matter within the province of his- 
tory/ 1 But history says not a word of the empire, not a 
^word of the the United State of America. 

51 Pomeroy's Constitutional Law, \ 46. 



OF THE UNITED STATES. 175 

Secondly, then, by what law was the competency of the \ 105. 
-parties to the federal constitution established and made Competency 
known ? If these parties were co-equal members of some j es _j 1 ow de- 
single political society or state, some one self-existing termined. 
and sovereign political body, < prior to, and at the time 
of, the adoption of the Constitution/ there must have been 
some law of that political body, by which their compe- 
tency as electors was determined and prescribed. I say, 
as electors ; that is, as members qualified by law to vote, 
to give their consent, as the original and co-equal sov- 
ereigns composing the body politic. This body politic, 
this one undivided and indivisible empire, composed of 
the people of the whole of this country, must have had 
laws ? There must have been a legislative power, and that 
must have prescribed laws, and so have determined who 
were competent to become parties to the new constitution. 
~Where are those laws ? Where are the records of this 
empire? Let history answer! That empire, and those 
Jaws, must have existed both ' prior to, and at the time of, 
the adoption of the Constitution/ prior, indeed, to any 
action by the people as separate and independent bodies 
of electors composing the separate and independent states; 
and consequently prior to the election of the delegates to 
the congresses preceding and during the Eevolution. For 
these delegates, as we have seen, were the chosen repre- 
sentatives, not of any one single 'political body, but of 
those very organizations or bodies of electors, which, 
from their several conditions as colonies, emerged into 
sovereign and independent states. The records of the 
colonies, the records of the states, and the records of the 
United States — all these we have. But where are the 
records of l the political unit that lies behind ' ? Where is 
the history of the empire? If this 'political unit' cannot 
"be identified as a historical fact, — if its records and laws 
cannot be found, there is, confessedly, an end of the impe- 
rial theory ; and we are driven to accept that theory which 
is inseparably interwoven with the history of our politi- 
cal existence, and which from the first to the last has re- 



176 POLITICAL AND CONSTITUTIONAL LAW 

garded our union as a union op states and not as a 
union of individuals. 

§ 106. Ad- But before we dismiss the imperial theory, perhaps we 
vantages of ought to consider what advantages it proposes : for, with- 

e imperia Q ^ doubt, it is possible yet for the people of the states to 
establish the empire — to wholly resume the powers of their 
governments, state and federal, and new-model and re-vest 
them as they please. This, indeed, may easily be done by 
a simple amendment to the federal constitution, carried in 
three-fourths of the state legislatures by a mere party 
vote (?) ! First, then, it is claimed as a peculiar advantage 
of this theory, that it forever puts an end to the right of 
the people of a state to resume to themselves the powers 
they have delegated to their governments ; and this it does 
by simply denying that when, in their judgment, those 
powers have been perverted into engines of tyranny and 
oppression, or 'when/ in the words of the Declaration of 
Independence, 'a long train of abuses and usurpations,, 
pursuing invariably the same object, evinces a design to 
reduce them under absolute despotism, it is their right, it 
is their duty, to throw off such government, and to pro- 
vide new guards for their future security :' by simply de- 
nying their right of self-government, their sovereignty, as a 
state, and affirming that they are, as a political society, in 
a position of permanent subordination to another political 
society, antecedently self-existing, with its own organiza- 
tion and government, and possessing in and for itself, in- 
herent and absolute powers of legislation. This other po- 
litical society is called ' the nation.' The states are view ed 
as creatures of 'the nation/ and as having no powers to re- 
sume but such as 'the nation ' has delegated to them. ' The 
organic law of the nation binds them by an irresistible 
sanction; another political society ' — (a political society 
other than any state, and other than any political union 
of the states as such, namely, ' the nation/) — ' not only may, 
but must control their legislation, and judge of the extent 
to which that legislation may be carried.' x 'Nay, it is pos- 

1 Pomeroy's Constitutional Law, §^ 42 a, 43. 



OF THE UNITED STATES. 177 

SIBLE THAT THE IDEA OF LOCAL SELF-GOVERNMENT, WHICH UN- 
DERLIES OUR PRESENT CIVIL POLITY, MIGHT BE ENTIRELY ABAN- 
DONED, AND THE PLAN OF COMPLETE CONSOLIDATION SUBSTI- 
TUTED IN ITS STEAD J EVEN A MONARCHY MIGHT BE REARED IN 

the place of the present republic/ x Another advantage 
of the theory is, that it views 'the organic law of the na- 
tion ' as already establishing an imperial and unlimited 
government — i, e. y a government possessing the power to 
finally, authoritatively, and exclusively judge of the ex- 
tent of its powers. It finds and fixes no limit to the power, 
the duty and right of the general government, to execute 
whatever laws, resolutions or decisions, it may choose to 
make. The states are the creatures of ' the organic law of 
the nation/ and not all combined can change it, or any 
construction thereof, without the consent of the imperial 
government thereby established. All further trouble about 
amendments, enlarging the powers of the •' national' gov- 
ernment, is thus at once and forever avoided. 
Such are the imperial advantages of this imperial scheme ! 2 

I cannot here but reflect, that there are principally only q 107> 
two ways by which a people originally free, and inspired A new and 
by the inspiring love of freedom, may come to lose their easy method 
liberties, and to be themselves the slaves of the enslaving °f usurpation. 
lust of power. The two ways are, first, by an open and 
forcible subjection of the people to military rule ; secondly, 
by a chain of legislative usurpations upon the organic law, 
masked as measures and means to the public good. The 
former is doubtless the more ancient and honorable way. 

1 Pomeroy's Const. Law, \ 115. 

2 The fundamental principle of the imperial theory, especially that of 
Mr. Pomeroy, appears to be self-contradiction. 'The people of the 
United States, is one body politic, possessing inherent sovereignty .' This 
Mr. Pomeroy asserts on almost every page of his introduction to the 
constitution. He also asserts that ' The whole scheme of the national 
government implies the existence of some organized states, and the sole 
action of these states in constructing and carrying on the government. 
Thus congress is composed of representatives and senators from the 
states ; the President and Vice President are chosen by electors appointed 
by the states.' (Pomeroy' s Const. Law, \ 493.) This fundamental con- 
tradiction being given, a system of contradictions results. 

L 



178 POLITICAL AND CONSTITUTIONAL LAW 

But then the latter must have this advantage, that it will 
always prove the less dangerous and difficult, and generally 
also the more certain of its object; requiring at first no 
open employment of force ; being easily concealed under 
specious pretensions to the public weal, so as to be no- 
where observed ; unless in the pretexts of power for as- 
suming greater power — for restraining the liberty of 
speech and assuming control of the press; for gradually 
increasing the government force, and largely distributing 
the public purse ; by the former of which means, the 
masses of the people (who too seldom think for them- 
selves) are easily educated to the new idea (whatever that 
may be), while by the latter a loyal and zealous support 
is at once obtained from such as are willing to barter their 
liberties for the favors of a prince. 

\ 108. As an instance and apt illustration of the grounds on 

The preamble which the imperial theory is placed, we again refer to the 
to the consti- i anguage f tne preamble to the federal constitution; < We, 
the people of the United States, .... do ordain and 
establish this constitution for the United States of America/ 
1 Here/ says Mr. Pomeroy, l is the calm, sublime state- 
ment of self-existence, of inherent and unlimited power, — a 
power of national and fundamental legislation for the pur- 
poses of protection to themselves as A body politic, and not 
to the states as separate political societies. This is the 
rock upon which many of the great champions of nation- 
ality among American statesmen have planted themselves 
in their conflicts with opposing schools, and from which 
they were never dislodged by the fiercest assaults of ex- 
treme or moderate partisans of state sovereignty/ 1 

g 109 It is difficult to believe that the learned i professor of 

How it orig- political science in the University of New York/ Who pro- 
inally stood, posed i to deal with plain historical facts, not with theories, 
and why nor with disputed questions of intention/ was really ig'no- 

ange " rant of the history of this l rock/ Every one knows, or 

1 Pomeroy' s Const. Law, \ 94. 



OF THE UNITED STATES. 179 

ought to know, that, as originally penned and unanimous- 
ly passed by the convention that framed it, the preamble 
read — ' We, the people of the States of New Hampshire, 
Massachusetts, Ehode Island and Providence Plantations, 
Connecticut, New York, New Jersey, Pennsylvania, Dela- 
ware, Maryland, Virginia, North Carolina, South Carolina, 
and Georgia, do ordain, declare and establish, the follow- 
ing Constitution, for the government of ourselves and our 
posterity/ 1 The change of this expression of the organic 
will, to that of i We, the people of the United States/ etc., 
was proposed by a sub-committee on style. And where- 
fore ? Because, it could not be foreknown, which of the 
states would accept and ratify the new constitution. If 
any nine of them should do so, they, at all events, accord- 
ing to the last article of the instrument, would thence become 
the United States of America. Hence the committee on 
style revised the language of the convention, and substi- 
tuted 'the United States,' in place of 'the States of New 
Hampshire, Massachusetts, Ehode Island/ etc. 2 

This is explained by Mr. Curtis, in his History of the « 110 
Constitution. 3 . Mr. Curtis's 

i Elliot's Debates, Vol. I, 230-231. explanation. 

2 It may be asked, why was the word 'people' employed? The fol- 
lowing extract (among many others that might be given) from The Fed- 
eralist, will answer this question. ' It has not a little contributed to the 
infirmities of the existing federal system, that it never had a ratification 
by the people. Besting on no better foundation than the consent of the 
several legislatures, it has been exposed to frequent and intricate ques- 
tions concerning the validity of its powers ; and has, in some instances, 
given birth to the enormous doctrine of a right of legislative repeal. 
Owing its ratification to the law of a state, it has been contended that 
the same authority might repeal the law by which it was ratified. How- 
ever gross a heresy it may be to maintain that a party to a compact has 
a right to revoke that compact, the doctrine itself has had respectable 
advocates. The possibility of a question of this nature, proves the 
necessity of laying the foundations of our national government deeper 
than in the mere sanction of delegated authority. The fabric of Ameri- 
can empire ought to rest on the solid basis of the consent op the peo- 
ple. The streams of national power ought to flow immediately from 
that pure original fountain of all legitimate authority.' The Federalist, 
No. 22, p. 103.— Hamilton. 

3 Vol. h, b. 4, c. 8, pp. 181-182. 



180 POLITICAL AND CONSTITUTIONAL LAW 

' The States, in their corporate capacities, and through 
the agency of their respective Governments, were parties 
to a Federal system, which they had stipulated with each 
other, should be changed only by a unanimous consent.. 
The Constitution, which was now in the process of forma- 
tion, was a system, designed for the acceptance of the peo- 
ple of all the States, if the assent of all could be obtained;, 
but it was also designed for the acceptance of a less num- 
ber, than the whole of the States, in case of a refusal of 
some of them ; and it was at this time highly probable 
that at least two of them would not adopt it. Ehode 
Island had never been represented in the Convention^, 
and the whole course of her past history, with reference 
to enlargements of the powers of the Union, made it quite 
improbable that she would ratify such a plan of Govern- 
ment as was now to be presented to her. The State of 
New York had, through her Delegates, taken part in the 
proceedings, until the final decision which introduced into 
the Government a system of popular representation; but 
two of those Delegates, entirely dissatisfied with that deci- 
sion, had withdrawn from the Convention, and had gone 
home to prepare the State for the rejection of the scheme. 
The previous conduct of the State had made it not at all 
unlikely that their efforts would be successful. Nor were 
there wanting other indications of the most serious dis- 
satisfaction, on the part of men of great influence in some 
of the other States. Unanimity had already become hope- 
less, if not impracticable ; and it was necessary, therefore,, 
to look forward to the event of an adoption of the system 
by a less number than the whole of the States, and to make 
it practicable for a less number to form the new Union for 
which it provided. This could only be done by present- 
ing it, for ratification, to the people of each State, who 
possessed authority to withdraw the State Government 
from the Confederation, and to enter into new relations 
with the people of such other States as might, also, with- 
draw from the old, and accept the new system/ So much 
for the Gibraltar of the imperial theory. 1 

1 'In the most recent times,' says Mr. Pomeroy, ' this theory has been 



the framers of 
the constitu- 
tion. 



OP THE UNITED STATES. 181 



THE FEDERAL THEORY. 

It was formerly shown, that the only possibility of a \ ill. 

developed with great precision and fullness by writers and juridical . " 

students of eminent ability and learning. Among these may be men- J[~ ^ m e 

tioned John Codman Hurd, in his "Essay on the Law of Freedom and 
Bondage in the United States;" O. A. Brownson, in his "American 
Republic," and George P. Marsh, in a series of letters communicated to 
the "Nation." ' With all deference to these able and learned writers, 
and to some others who have followed in their train, I must beg leave to 
say, that they have failed to develop the imperial theory in so perfect a 
manner as Mr. Pomeroy himself has done. 

The seeds of the imperial theorj', were, without doubt, originally 
sown b} r some of the Nationals (after the defeat of their scheme in the 
convention that framed the federal constitution) by way of attempting 
a constwction of that instrument which should favor the sovereignty of 
the general government. One of the earliest of the efforts made toward 
such a construction, after the adoption of the constitution, was that of 
John Jay, when, in 1793, as the first chief justice of the United States, 
he delivered his opinion in the important case of Chisholm Ex'r v. 
Georgia (reported in 2 Dall. 470, et seq). One or two paragraphs of that 
opinion, will show the method and grounds of argument originally 
taken. He therein says: — 'In determining the sense in which Georgia 
is a sovereign State, it may be useful to turn our attention to the politi- 
cal situation we were in, prior to the Revolution, and to the political 
rights which emerged from the Revolution. All the country now pos- 
sessed by the United States, was then a part of the dominions apper- 
taining to the crown of Great Britain. Every acre of land in this coun- 
try was then held mediately or immediately by grants from that crown. 
All the people of this country were then subjects of the King of Great 
Britain, and owed allegiance to him ; and all the civil authority then 
existing or exercised here, flowed from the head of the British Empire. 
They were in the strict sense fellow subjects, and in a variety of re- 
spects one people.' ' The Revolution, or rather the Declaration 

of Independence, found the people already united for general purposes, 
and at the same time providing for their more domestic concerns by 
State conventions and other temporary arrangements. From the crown 
of Great Britain, the sovereignty of the country passed to the people 
of it; and it was then not an uncommon opinion, that the unappropri- 
ated lands which belonged to that crown, passed not to the people of the 
Colony or State within whose limits they were situated, but to the whole 
people ; on whatever principle this opinion rested, it did not give way 
to the other, and [although] thirteen sovereignties were considered 
as emerged from the principles of the Revolotion, combined with local 
convenience and considerations, the people nevertheless continued to 
consider themselves, in a national point of view, as one people ; and 



182 POLITICAL AND CONSTITUTIONAL LAW 

union of states as such, is the possibility of an organic 
law of their union, which shall determine and fix the 

they continued without interruption to manage their national concerns 
accordingly: afterwards in the hurry of the war, they made a Confeder- 
ation of the States the basis of a General Government. Experience- 
disappointed the expectations they had formed from it; and then the 
people in their collective and national capacity, established the present 
Constitution. It is remarkable that in establishing it, the people ex- 
ercised their own rights, and their own proper sovereignty, and con- 
scious of the plentitude of it, they declared, with becoming dignity, 
" "We, the people of the United States, do ordain and establish this Con- 
stitution." Here we see the people acting as sovereigns of the whole- 
country : and in the language of sovereignty, establishing a Constitu- 
tion by which it was their will, that the State Governments should be 
bound, and to which the State Constitutions should be made to con- 
form By this great Compact, however, many prerogatives 

were transfered to the National Government, such as those of making 

war and peace, contracting alliances, coining money, etc At 

the Revolution, the sovereignty devolved on the people ; and they are 
truly the sovereigns of the country, but they are sovereigns without sub- 
jects (unless the African slaves among us may be so called) and have 
none to govern but themselves ; the citizens of America are equal as 
fellow citizens, and joint tenants in the sovereignty.' 

The foundaiion of the theory in question, then, is the assertion of three 
things as facts ; viz : 

1. That the Anglo-American people were originally British subjects, 
and as such, were a portion of one and the same political society, nation 
or state, namely, that of Great Britain ; which political society, how- 
ever, so far as it concerned the American portion thereof, was dissolved 
and ended by the American Revolution. 

2. That the Revolution was accomplished in pursuance of authority 
delegated by the American portion of that political society, this Ameri- 
can portion acting in the character and capacity of a single new political! 
state ; and thereupon the sovereignty of the country passed, from the 
crown of Great Britain, to this new political society, to the American- 
people in their new capacity of a single political body. 

3. That the constitution of the United States was ordained and estab- 
lished by ' the people of the United States,' the people acting as co- 
equal members of a single political community, that is to say, as the- 
single new political state, which had from the beginning assumed the sov- 
ereignty of the country. 

Now the first proposition is true to the letter. But the second and 
third are mere inventions, idle fictions ; which, however ' played oflf with 
the ingenious dexterity of political legerdemain,' are wholly at variance 
with the facts of our history, as everyone knows or ought to know ; but 
which, nevertheless, must be either ignorantly or perversely asserted as 
true by every advocate of this scheme of absolute government in America. 



OP THE UNITED STATES. 183 

natural and necessary boundary line between the internal 
sovereignty of each and the external sovereignty of all. 1 

The original proponents of the theory, as will be evident to all who 
carefully examine the occasions which called it forth, designed it as 
merely responsive to the equally unfounded and preposterous assertions 
of sovereignty in the governments of the states. Thus in the case above 
mentioned, the ground was taken that the government of Georgia was 
sovereign ; and it was in opposition to that doctrine that the foregoing 
theory was advanced. The theory, however, was subsequently adopted by 
Justice Story, as also by others, and perhaps with a similar object in view. 
While the later proponents and advocates of the scheme, among them 
the leaders of the republican party during the late rebellion, have given 
to it the character and developed form of a theory which, in proportion 
as followed, tends to convert our general government into an imperial, 
unlimited, iweponsible and despotic power. Apart from the fact alone 
that it is now enforced, not by appeals to the records of our sovereign 
legislation, but by the power of the dominant party, it has, as we have 
clearly and abundantly shown, no sort of foundation which could for a 
moment entitle it to a serious consideration. A single fact of our his- 
tory completely explodes it ; that, from the beginning of the Revolution 
down to the present day, the people o/each state, in every delegation of 
power to the state or the United States government, have acted as a sepa- 
rate and sovereign political community, have voted by virtue of their own 
inherent authority expressed in their own peculiar election law. No one, 
indeed, has ever asserted that the people of each state ever once acted 
by virtue of an election law which was common to all the states and im- 
posed or prescribed by a common authority. And this, the authority 
for the election laws, is the highest test of sovereignty known to our system. 

' But it is not to be forgotten that these doctrines, though ever so 
clearly disproved, or ever so weakly defended, remain before the public 
a striking monument of the principles and views which are entertained 
and propagated in the community. It is also to be remembered, that 
however the consequences flowing from such premises, maybe disavowed 
at this time, or by this individual, we are to regard it as morally certain, 
that in proportion as the doctrines make their way into the creed of the 
government, and the acquiescence of the public, every power that can 
be deduced from them, will be deduced, and exercised sooner or later by 
those who may have an interest in so doing. The character of human 
nature gives this salutary warning to every sober and reflecting mind. 
And the. history of .government in all its forms and in every period of 
time, ratifies the danger. A people, therefore, who are so happy as to 
possess the inestimable blessing of a free and defined constitution, cannot 
be too watchful against the introduction, nor too critical in tracing the 
consequences, of new principles and new constructions, that may remove 
the landmarks of power.' Letters of Helvidius, No. 4. Madison. 

^ee^ 14, 15, 16, ante. 



184 POLITICAL AND CONSTITUTIONAL LAW 

If, then, a union of states was designed by the federal 
constitution, there ought to be some evidence of an effort 
to fix this boundary line, not only in the nature and cha- 
racter of the several provisions of the federal constitution, 
but also in the proceedings of those who framed and es- 
tablished that organic law. 

From the speeches of one who was distinguished as a 
leader, not only in the general convention of the states, 
but afterwards also in the ratifying convention of Penn- 
sylvania, we have the following account of the difficulties 
experienced by the framers of 'the new constitution/ 1 <A 
very important difficulty arose from comparing the extent of 
the country to be governed, with the kind of government 
which it would be proper to establish in it. It has been an 
opinion, countenanced by high authority, " that the natural 
property of small states is to be governed as a republic ; of 
middling ones, to be subject to a monarchy j and of large 
empires, to be swayed by a despotic prince ; — and that the 
consequence is, that in order to preserve the principles of 
the established government, the state must be supported 
in the extent it has acquired; and that the spirit of the 
state will alter in proportion as it extends or contracts its 
limits." 2 This opinion seems to be supported, rather than 
contradicted, by the history of the governments in the old 
world. Here, then, the difficulty appeared in full view. 
On the one hand, the United States contain an immense ex- 
tent of territory; and, according to the foregoing opinion, 
a despotic government is best adapted to that extent. On 
the other hand, it was well known, that however the citi- 
zens of the United States might with pleasure submit to 
the legitimate restraints of a republican constitution, they 
would reject with indignation the fetters of despotism. 
What, then, was to be done ? The idea of a Confederate 
Eepublic presented itself. This kind of constitution has 
been thought to have " all the internal advantages of a 
republican, together with the external force of a mon- 

1 See "Wilson's speeches in the Pennsylvania Convention, reported in 
Elliot's Debates, Vol. n, p. 418. 

2 Montesquieu, Spirit of Laws, b. vin, c. 20. 



OF THE UNITED STATES. 185 

archical government." 1 Its description is, " a convention 
by which several smaller states agree to become members 
of a larger one, which they intend to establish. It is a 
kind of assemblage of societies that constitute a new one, 
capable of increasing by means of further association." 2 
The expanding quality of such government is peculiarly 
fitted for the United States, the great part of whose terri- 
tory is yet uncultivated.' * * * * 

1 The convention, by proposing to their constituents the \ 112. 

plan of a Confederated Republic, found themselves em- The principle 

barrassed with another difficulty, of peculiar delicacy and .. a & overne 

. x » . -i *he conven- 

lmportance. I mean that of drawing a proper line between tion> 

the national government and the governments of the 
several States. 3 It was easy to discover a proper and sat- 
isfactory principle on the subject. Whatever object of 
government is confined in its operation and effects, within 
the bounds of a particular state, should be considered as 
belonging to the government of that state; whatever ob- 
ject of government extends, in its operation or effects, be-' 
yond the bounds of a particular state, should be consid- 
ered as belonging to the government of the United States. 
But though this principle be sound and satisfactory, its 
application to particular cases would be accompanied with 
much difficulty, because, in its application, room must be 
allowed for great discretionary latitude of construction of 
the principle. In order to lessen or remove the difficulty, 
arising from discretionary construction on this subject, an 
enumeration of particular instances, in which the applica- 
tion of the principle ought to take place, has been at- 
tempted with much industry and care. It is only in mathe- 

1 Montesquieu, b. ix., c. 1, 2 ; Paley, 199, 202. 

2 Montesquieu, b. ix., c. 1. 

3 ' The arduous task of marking the proper line of partition between 
the authority of the general, and that of the state governments,' and 
the difficulties experienced in relation thereto, were commented on by- 
Madison, and very fully illustrated by examples, in a number contrib- 
uted by him to The Federalist. See, of that work, No. 37, pp. 163, 164, 
165. See also the letter of the convention submitting the constitu- 
tion to the then congress, ante, \ 83 a. 



186 POLITICAL AND CONSTITUTIONAL LAW 

matical science that a line can be described with mathe- 
matical precision. But I flatter myself, that, upon the 
strictest investigation, the enumeration will be found to be 
safe, and unexceptionable, and accurate, too, in as great a 
degree as accuracy can be expected in a subject of this- 
nature/ .... 'After all, it will be necessary that,, 
on a subject so peculiarly delicate as this, much prudence,, 
much candor, much moderation and much liberality, should 
be exercised and displayed, both by the Federal government 
and by the governments of the several States. It is to be 
hoped that those virtues of government will be exercised 
and displayed, when we consider that the powers of the 
Federal government, and those of the State governments,, 
are drawn from sources equally pure/ 

\ 113. The truth then is, that the framers of the present constitu- 

Design of the tion of the union designed to establish a union op states ; 
federal consti- a t confederated republic/ ' a convention by which several 
smaller states agree to become members of a larger one f 
— and in order to accomplish this, designed to determine 
and fix the line between the sovereignty of each state, as a 
free and independent political community, and the sover- 
eignty of all, as united in a general government for all $ 
and to fix this line, in the only practicable way in which, 
it could be fixed, by 'an enumeration of the particular in- 
stances in which the application of the principle ought to 
take place •/ in other words, by an enumeration of the specific, 
powers to be vested in the common government : a step 
which had never been taken in framing the state 'consti- 
tutions. 

For this position, we also have the contemporaneous and 
unquestionable authority of * The Federalist/ x The oppon- 

1 A series of very extraordinary papers ' On the New Constitution,' 
written during the pendency of that instrument before ' the people ' for 
ratification or rejection by Alexander Hamilton, James Madison, and 
John Jay, and which every student of our political system should care- 
fully and constantly study. 

* There is no work on the subject of the constitution, and on republi- 
can and federal government generally, that deserves to be more thorough- 
ly studied. The Federalist appeared originally in a series of numbers, 



OP THE UNITED STATES. 187 

ents of the new constitution had urged the objection, that 
in departing from the peculiar characteristic of the old 
confederation, which was that of a government acting up- 
on states and not upon individuals, the original idea of 
a federal government had been abandoned. But that, it 
was shown, was no criterion of a federal, as distinguished 
from a national, government. The true criterion of a fed- 
eral government was shown to be, a union of two or more 
states as such. 1 It will, however, be important to observe, 
that the opponents of the new constitution, were answered 
in accordance with their criterion of a federal government- 
Thus Mr. Madison : — ' In order to ascertain the real char- 
acter of the government, it may be considered in relation 
to the foundation on which it is to be established ; to the 

published in the New York daily papers, between October, 1787, and' 
June, 1788. They were read with admiration and enthusiasm as they 
successively appeared. * * * * No constitution of government 
ever received a more masterly and successful vindication. I know not, 
indeed, of any work on the principles of free government that is to be 
compared, in instruction and instrinsic value, to this small and unpre- 
tending volume of 'The Federalist,' not even if we resort to Aristotle,. 
Cicero, Machiavel, Montesquieu, Milton, Locke, or Burke. It is equally 
admirable in the depth of its wisdom, the comprehensiveness of its 
views, the sagacity of its reflections, and the fearlessness, patriotism, 
candor, simplicity and elegance with which its truths are uttered and' 
recommended. Mr. Justice Story acted wisely in making the Federalist 
the basis of his Commentary.' 1 Kent's Commentaries, *241 in note- 
*A series of letters' says Pomeroy, 'since known as The Federalist, 
which exerted a most powerful influence in producing the final result,, 
and which have been, and will remain, an authority to the courts, and a 
text-book to political students, one of the most complete and profound 
expositions of the science of government that has ever appeared.' Pom- 
eroy's Constitutional Law, \ 83, p. 58. 'The opinion of The Federalist,' 
says the Supreme Court of the United States, ' has always been consid- 
ered as of great authority. It is a complete commentary on our consti- 
tution ; and is appealed to by all parties in the questions to which that 
instrument has given birth. Its intrinsic merit entitles it to this high 
rank; and the part two of its authors performed in framing the consti- 
tution, put it very much in their power to explain the views with which 
it was framed.' Cohens v. Virginia, 5 Pet. Cond. K. 122. Let us there- 
fore try by the test of 'The Federalist,' the only universally acknowl- 
edged authority, all the theories of our system alike, which have been or 
may be proposed. 
iSee The Federalist, No. 9, pp. 40, 41. 



188 POLITICAL AND CONSTITUTIONAL LAW 

sources from which its ordinary powers are to be drawn ; 
to the operation of those powers j to the extent of them ; 
and to the authority by which future changes in the gov- 
ernment are to be introduced. 

\ 114. ' On examining the first relation, it appears, on the one 

Foundation of hand, that the constitution is to be founded on the assent 
the constitu- ana - ratification of the people of America, given by depu- 
ties elected for the special purpose; but on the other, 
that this assent and ratification is to be given by the peo- 
ple, not as individuals composing one entire nation, but as 
composing the distinct and independent states to which they re- 
spectively belong. It is to be the assent and ratification of 
the several states, derived from the supreme authority in each 
state — the authority of the people themselves. The act, 
therefore, establishing the constitution, will not be a na- 
tional, but a federal act. 

"That it will be a federal, and not a national act,, as these 
terms are understood by the objectors, the act of the peo- 
ple, as forming so many independent states, not as form- 
ing one aggregate nation, is obvious from this single con- 
sideration, that it is to result neither from the decision of 
a majority of the people of the union, nor from that of a 
majority of the states. It must result from the unanimous 
assent of the several states that are parties to it, differing 
no otherwise from their ordinary assent than in its being 
expressed, not by the legislative authority, but by that of 
the people themselves. Were the people regarded in this 
transaction as forming one nation, the will of the majority 
of the whole people of the United States would bind the 
minority, in the same manner as the majority in each 
«tate must bind the minority; and the will of the majority 
must be determined either by a comparison of the indi- 
vidual votes, or by considering the will of the majority of 
the states, as evidence of the will of a majority of the 
people of the United States. Neither of these rules has 
been adopted. Each state, in ratifying the constitution, is 
considered as a sovereign body, independent of all others, and 
only to be bound by its own voluntary act. In this relation, 



OP THE UNITED STATES. 189 

then, the new constitution will, if established, be a federal, 
and not a national constitution/ x 

"The next relation is, to the sources from which the or- £115. 
dinary powers of government are to be derived. The Sources of 
house of representatives will derive its powers from the people P owers * 
of America, and the people will be represented in the 
same proportion, and on the same principle, as they are in 
the legislature of a particular state. So far the govern- 
ment is national, not federal. The senate, on the other 
hand, will derive its powers from the states, as political and 
co-equal societies; and these (the states) will be repre- 
sented on the principle of equality in the senate, as they 
now are in the existing congress. So far, the government 
is federal, not national. The executive power will be de- 
rived from a very compound source From this 

aspect of the government, it appears to be of a mixed 
character, presenting at least as many federal as national 
features/ 2 

' The difference between a federal and national govern- \ 116. Oper- 
ment, as it relates to the operation of the government, is, ation of feder- 
by the adversaries of the plan of the convention, supposed ai powers. 
to consist in this, that in the former, the powers operate 
on the political bodies composing the confederacy in their politi- 
cal capacities ; in the latter, on the individual citizens compos- 
ing the nation, in their individual capacities. On trying 
the constitution by this criterion, it falls under the national, 
not the federal character; though perhaps not so com- 
pletely as has been understood/ 3 

'But if the government be national with regard to the g nj m ^x- 

operation of its powers, it changes its aspect again when tent of pow- 

we contemplate it in relation to the extent of its powers. ers - Linebe- 

The idea of a national government involves in it, not only w< : eu state 
& ' J and federal 

1 The Federalist, No. 39, pp. 176, 177. sovereignty. 

2 Id. p. 177. That is, when tried by the criterion of the old confed- 
eration. 

3 Id. p. 177. 



190 POLITICAL AND CONSTITUTIONAL LAW 

an authority over the individual citizens, but an indefinite 
supremacy over all persons and things, so far as they are 
objects of lawful government. Among a people consoli- 
dated into one nation, this supremacy is completely vested 
in the national legislature. Among communities united 
for particular purposes, it is vested partly in the , general, 
and partly in the municipal legislatures. In the former 
case, all local authorities are subordinate to the supreme ; 
and may be controlled, directed, or abolished by it at 
pleasure. In the latter, the local or municipal authorities 
form distinct and independent portions of the supremacy, 
no more subject, within their respective spheres, to the general 
authority, than the general authority is subject to them within 
its own sphere. In this relation, then, the proposed gov- 
ernment cannot be deemed a national one ; since its juris- 
diction extends to certain enumerated objects only, and leaves 
to the several states a residuary and inviolable sovereignty over 
all other objects} .... 

'Will it be said that the fundamental principles of the 
confederation were not within the purview of the conven- 
tion, and ought not to have been varied ? I ask what are 
these principles ? Do they require, that in the establish- 
ment of the constitution, the states should be regarded as 
distinct and independent sovereigns? They are so regarded 
by the constitution proposed. Do they require, that the mem- 
bers of the government should derive their appointment 
from the legislatures, not from the people of the states? 
One branch of the new government is to be appointed 
by these legislatures; and under the confederation, the 
delegates to congress may all be appointed immediately by 
the people; and in two states are actually so appointed. 
Do they require, that the powers of the government 
should act on the states, and not immediately on individ- 
uals ? In some instances, as has been shown, the powers 
of the new government will act on the states in their col- 
lective characters. In some instances also, those of the 
existing government act immediately on individuals. . . . 
.Do these principles, in fine, require that the powers of the 

1 The Federalist, No. 39, p. 178. 



OP THE UNITED STATES. 191 

-general government should be limited, and that beyond 
this limit, the states should be left in possession of their 
sovereignty and independence ? We have seen, that in 
the new government, as in the old, the general powers are 
limited; and that the states, in all unenumerated cases, are 
left in the enjoyment of their sovereign and independent juris- 
diction. 

i Truth is, that the great principles of the constitution 
proposed by the convention, may be considered less, as 
absolutely new, than as the expansion of principles which 
■are found in the articles of confederation. x 

' If the new constitution be examined with accuracy and 
candor, it will be found that the change which it proposes, 
consists much less in the addition of new powers to the 
union, than in the invigoration of its original powers/ 2 

Defending the plan of government proposed by l the \ us. The 
new constitution/ against the arguments drawn from the views of Ham- 
examples of ancient republics, Alexander Hamilton gave ilton - 
his theory of the new constitutional plan of government, 
and the principal improvements in political science on 
which he relied. (His reasoning was always that of a 
.giant mind and master builder, and no apology is there- 
fore needed for quoting from The Federalist his views at 
considerable length.) 

1 From the disorders that disfigure the annals of those 
republics, the advocates of despotism have drawn argu- 
ments, not only against the forms of republican govern- 
ment, but against the very principles of civil liberty. . . 
.. . . . If it had been found impracticable to have de- 
vised models of a more perfect structure, the enlightened 
friends of liberty would have been obliged to abandon 
the cause of that species of government as indefensible. 
The science of politics, however, like most other sciences, 
has received great improvement. The efficacy of various 
principles is now well understood, which were either not 
iknown at all, or imperfectly known to the ancients. The 

1 The Federalist, No. 40, pp. 181, 182. 

2 Id. No. 45, p. 216. 



192 POLITICAL AND CONSTITUTIONAL LAW 

regular distribution of power into distinct departments; 
the introduction of legislative balances and checks; the 
institution of courts composed of judges holding their 
offices during good behavior; the representation of the 
people in the legislature by deputies of their own election; 
these are either wholly new discoveries, or have made 
their principal progress toward perfection in modern times. 
. To this catalogue of circumstances, that tend 
to the melioration of popular systems of civil government, 
I shall venture, however novel it may appear to some, to 
add one more, on a principle that has been made the 
foundation of an objection to the new constitution; I 
mean the enlargement of the orbit within which such 
systems are to revolve, either in respect to the dimensions 
of a single state, or to the consolidation of several smaller 
states, into one great confederacy.' [I pause here for a mo- 
ment to observe, that Hamilton must have had in view,, 
and have well understood the possibility of such a confed- 
eracy, to which our attention was directed in the beginning 
of this work ; and also to observe the sense in which the 
term consolidation was used by the framers of the constitu- 
tion:] ' The consolidation of several smaller states into one great 
confederacy. The latter is that which immediately concerns 
the object under consideration. It will, however, be of use 
to examine the principle in its application to a single state, 
which shall be attended to in another place. 

' The utility of a confederacy, as well to suppress faction, 
and to guard the internal tranquillity of states, as to increase 
their external force and security, is in reality not a new 
idea. It has been practised upon in different countries 
and ages, and has received the sanction of the most ap- 
proved writers on the subject of politics. The opponents 
of the plan proposed, have, with great assiduity, cited 
and circulated the observations of Montesquieu on the ne- 
cessity of a contracted territory for a republican govern- 
ment. Bnt they seem not to have been apprised of the 
sentiments of that great man expressed in another part of 
his work, nor to have adverted to the consequences of the 



OF THE UNITED STATES. 193 

principle to which they subscribe with such ready acqui- 
escence 

1 Referring the examination of the principle itself to an- 3119. 
other place, as has been already mentioned, it will be suf- A confeder- 
ficient to remark here, that in the sense of the author who ate re P u blic 
has been most emphatically quoted on the occasion, it P ro P ose • 
would only dictate a reduction of the size of the more con- 
siderable members of the union ; but would not militate 
against their all being comprehended in one confederate 
government. And this is the true question, in the discussion 
of which we are at present interested. 

1 " It is very probable," says he, 1 " that mankind would 
have been obliged, at length, to live constantly under the 
government of a single person, had they not contrived a 
kind of constitution, that has all the internal advantages 
of a republican, together with the external force of a mon- 
archical government. I mean a confederate republic. 

' " This form of government is a convention by which 
several smaller states agree to become members of a larger 
one, which they intend to form. It is a kind of assemblage 
of societies, that constitute a new one, capable of increasing 
by means of new associations, till they arrive to such a 
degree of power as to be able to provide for the security 
of the united body. 

' " A republic of this kind, able to withstand an external 
force, may support itself without any internal corruption. 
The form of this society prevents all manner of inconven- 
iences. 

1 " If a single member should attempt to usurp the su- 
preme authority, he could not be supposed to have an 
equal authority and credit in all the confederate states. 
"Were he to have too great influence over one, this would 
alarm the rest. Were he to subdue a part, that which 
would still remain free might oppose him with forces inde- 
pendent of those which he had usurped, and overpower 
him before he could be settled in his usurpation. 

1 " Should a popular insurrection happen in one of the 

1 Spirit of Laws, Yol. 1, b. ix, c. 1. 

M 



194 POLITICAL AND CONSTITUTIONAL LAW 

confederate states, the others are able to quell it. Should 
abuses creep into one part, these are reformed by those 
that remain sound. The state may be destroyed on one 
side, and not on the other ; the confederacy may be dissolved, 
the confederates preserve their sovereignty. 

'"As this government is composed of small republics, it 
enjoys the internal happiness of each, and with respect to 
its external situation, it is possessed, by means of the asso- 
ciation, of all the advantages of large monarchies." 

1 1 have thought it proper to quote at length these inter- 
esting passages, because they contain a luminous abridg- 
ment OF THE PRINCIPAL ARGUMENTS IN FAVOR OF THE UNION, 

and must effectually remove the false impressions which a 
misapplication of the other parts of the work was calcu- 
lated to produce/ 1 

I leave the reader to collect what sort of government it 
was that Hamilton believed was about to be formed by 
1 the new constitution/ and that he was so anxious the 
states should adopt. 

, 190 The fact is undeniable, that a confederacy of the states, 

a confederate republic, after the model given by Montes- 
quieu, was in the minds of all who favored the adoption 
of the new constitution. The ideas of those who specu- 
lated on the dismemberment of the union, as Hamilton 
himself informs us, seemed generally turned towards three 
confederacies ; one consisting of the four nothern, another 
of the four middle, and a third of the five southern states. 
And he, opposing to that scheme the advantages of i one 
-confederate government/ did not scruple to argue that 
in the event of so many confederacies, < each would require 
a government not less comprehensive than the one proposed' 2 
Madison said: ( The immediate object of the Federal Con- 
stitution, is to secure the union of the thirteen primitive 
states, which we know to be practicable ; and to add to 
them such other states, as may arise in their own bosoms 
or in their neighborhoods, which we cannot doubt to be 

1 The Federalist, No. 9. 

* The Federalist, No. 13, p. 59. 



OP THE UNITED STATES. 195 

equally practicable/ 1 ' The leaders of the Kevolution 
formed the design of a great confederacy, which it is in- 
cumbent on their successors to improve and perpetuate. 
If they erred most in the structure of the union, this was 
the work most difficult to be executed ; this is the work 
which has been new modelled by the act of your conven- 
tion, and it is that act on which you are now to deliberate 
and to decide/ 2 

And what, according to Hamilton, was the great advan- \ 121. Ad- 
tage to be secured by the federal system ? * In a confed- vantages of a 
eracy/ he says, ' the people, without exaggeration, may be ^ " 
said to be entirely the masters of their own fate. Power 
being almost always the rival of power, the general gov- 
ernment will at all times stand ready to check the usurpa- 
tions of the state governments ; and these will have the 
.game disposition towards the general government. The 
people, by throwing themselves into either scale, will in- 
fallibly make it preponderate. If their rights are invaded 
by either, they can make use of the other as the instru- 
ment of redress It may safely be received 

.as an axiom in our political system, that the state govern- 
ments will, in all possible contingencies, afford complete 
.security against invasions of the public liberty by the 
national authority/ 3 

The two opposite ideas of the time, were, on the one 
Iiand, that of a league between the states, offensive and 
defensive, with a general council or congress clothed with 
powers to act on the states but not on their citizens ; and 
that, on the other hand, of a confederation of the states 
in a common government for common interests and gen- 
eral purposes, formed on the model of the state govern- 
ments, and possessed of certain enumerated powers, and 
acting immediately, within the sphere assigned to it, on 
the citizens of all the states. The first was favored by 
the states-right party ; the last was the plan proposed by 

1 The Federalist, No. 14, p. 63. 

2 Id. pp. 64-65. 

5 Id. No. 28, p. 126. 



196 



POLITICAL AND CONSTITUTIONAL LAW 



the new constitution, and advocated by the authors of l The 
Federalist/ The objections of the state-rights advocates, 
were chiefly directed against a consolidation of the states 
into one political body ; and the whole reasoning, tenor and 
spirit of ' The Federalist/ go to show, that to answer those 
objections, so far as they went to the proposed constitu- 
tion, was one of the principal designs of that work. It 
was, as we have said, also in issue, whether there ought to 
be only a single confederacy of the states, or two or more; 
and this also entered into some of the discussions. 



I 122. 

Legislation 
for States con- 
demned. 



The state-rights party particularly objected to the im- 
mediate action of the federal government, on the citizens 
of the states. Hamilton answered as follows : ' If we still 
adhere to the design of a national government, or, which 
is the same thing, of a superintending power, under the 
direction of a common council, we must resolve to incor- 
porate into our plan those ingredients which may be con- 
sidered as forming the characteristic difference between a 
league and a government; we must extend the authority 
of the union to the persons of the citizens — the only proper 
objects of government/ 1 (Note his definition of a national 
government.') ' The concurrence of thirteen distinct sov- 
ereign wills is requisite under the confederation, to the 
complete execution of every important measure that pro- 
ceeds from the union. It has happened, as was to have 

been foreseen Congress at this time scarcely 

possess the means of keeping up the forms of administra- 
tion, till the states can have time to agree upon a more 
substantial substitute for the present shadow of a federal 
government Each state, yielding to the persua- 
sive voice of immediate interest or convenience, has suc- 
cessively withdrawn its support, till the frail and totter- 
ing edifice seems ready to fall on our heads, and to crush 
us beneath its ruins. 2 The tendency of the principle of 
legislation for states or communities in their political ca- 
pacities, as it has been exemplified by the experiment we 

1 The Federalist, No. 15, pp. 68-69. 

2 Id. pp. 70-71. 



OF THE UNITED STATES. 197 

have made of it, is equally attested by the events which 
have befallen all other governments of the confederate 
kind, of which we have any account, in exact proportion 

to its prevalence in those systems Of all the 

confederacies of antiquity which history has handed down 
to us, the Lycian and Achaean leagues, as far as there re- 
main vestiges of them, appear to have been most free 
from the fetters of that mistaken principle, and were ac- 
cordingly those which have best deserved, and have most 
liberally received, the applauding suffrages of political 
writers. This exceptionable principle may, as truly as 
emphatically, be styled the parent of anarchy ; it has been 
seen, that delinquencies in the members of the union are 
its natural and necessary offspring; and that whenever 
they happen, the only constitutional remedy is force, and 
the immediate effect of the use of it, civil war/ x 

' It seems to require no pains to prove, that the states \ 123. Coer- 
•ought not to prefer a national constitution, which could cion . of states 
only be kept in motion by the instrumentality of a large "nprad* *- 
army, continually on foot to execute the ordinary requisi- 
tions or decrees of the government. And yet this is the 
plain alternative involved by those who wish to deny it 
the power of extending its operations to individuals. Such 
a scheme, if practicable at all, would instantly degenerate 
into a military despotism: but it will be found in every 
light impracticable. . . . Whoever considers the pop- 
ulousness and strength of several of these states singly at 
the present juncture, and looks forward to what they will 
become, even at the distance of half a century, will at once 
dismiss as idle and visionary any scheme, which aims at 
regulating their movements by laws, to operate upon them 
in their collective capacities, and to be executed by a co- 
ercion applicable to them in the same capacities. A pro- 
ject of this kind is a little less romantic than the monster- 
taming spirit, attributed to the fabulous heroes and demi- 
gods of antiquity. 

1 Even in those confederacies, which have been composed 

1 The Federalist, No. 16, pp. 71-72. See \ 13, ante. 



198 POLITICAL AND CONSTITUTIONAL LAW 

of members smaller than many of our counties, the prin- 
ciple of legislation for sovereign states, supported by mili- 
tary coercion, has never been found effectual. It has rare- 
ly been attempted to be employed, but against the weaker 
members; and in most instances attempts to coerce the 
refractory and disobedient, have been the signals of bloody 
wars, in which one -half of the confederacy has displayed 
its banners against the other. 

1 The result of these observations to an intelligent mind,, 
must be clearly this, that if it be possible at any rate to 
construct a federal government capable of regulating the 
common concerns, the preserving the general tranquillity,, 
it must be founded, as to the objects committed to its care,, 
upon the reverse of the principle contended for by the op- 
ponents of the proposed constitution. It must stand in 
need of no intermediate legislations; but must itself be 
empowered to employ the arm of the ordinary magistrate 
to execute its own resolutions. The majesty of the na- 
tional authority must be manifested through the medium 
of the courts of justice. The government of the union r 
like that of each state, must be able to address itself im- 
mediately to the hopes and fears of individuals; and to at- 
tract to its support those passions which have the strong- 
est influence upon the human heart. It must, in short,, 
possess all the means, and have a right to resort to all the 
methods, of executing the powers with which it is intrust- 
ed, that are possessed and exercised by the governments; 
of the particular states/ x Thus did Hamilton answer the 
opponents of legislation for individuals by the federal gov- 
ernment, while not ceasing for a moment to support the- 
plan of a confederate republic. 

124. En- The course pursued by the states, under the articles of 

crochments confederation, had led him to view their authority with 

"by the states. j ea l usy. He acknowledged his 'aversion to every project 

that was calculated to disarm the federal government of a 

single weapon, which in any possible contingency might 

1 The Federalist, pp. 73-74. 



OF THE UNITED STATES. 199 

be usefully employed for the general defence and security/ L 
i It will/ he said, < always be far more easy for the state gov- 
ernments to encroach upon the national authorities, than for 
the national government to encroach upon the state authorities/ 2 
And why? Because of 'the greater degree of influence 
which the state governments, if they administer their 
affairs with uprightness and prudence, will generally pos- 
sess over the people ; a circumstance which at the same 
time teaches us, that there is an inherent and intrinsic 
weakness in all federal constitutions; and that too much 
pains cannot be taken in their organization, to give them 
all the force which is compatible with the principles of 
liberty/ 3 To the proof and development of these posi- 
tions, several numbers of ' The Federalist' were devoted. * 
In No. 25 he says, ' Eeasons have been already given to 
induce a supposition, that the state governments will too 
naturally be prone to a rivalship with that of the union,, 
the foundation of which will be the love of power; and 
that in any contest between the federal head and one of 
its members, the people will be most apt to unite with 
their local government/ 'The state legislatures will 
always be not only vigilant, but suspicious and jealous 
guardians of the rights of the citizens, against encroach- 
ments from the federal government ; will constantly have 
their attention awake to the conduct of the national rulers r 
and will be ready enough, if anything improper appears, 
to sound the alarm to the people, and not only to be the 
voice, but, if necessary, the arm of their discontent/ 5 'The 
convention probably foresaw, what it has been a principal 
aim of these papers to inculcate, that the danger which 
most threatens our political welfare is, that the state gov- 
ernments will finally sap the foundations of the union/ 6 
In the very last number of The Federalist, he says, i We 

1 The Federalist, No. 36, p. 160. 

2 Id. No. 17, p. 76. 
» Id. pp. 76-77. 

* See Nos. 18, 19 and 20. 
5 Id. No. 26, p. 119. 

• Id. No. 33, p. 144. 



200 POLITICAL AND CONSTITUTIONAL LAW 

may safely rely on the disposition of the state legislatures 
to erect barriers against the encroachments of the national 
authority/ l 

Madison also gave frequent expression to similar views. 2 

\ 125. Ne- i If the circumstances of our country are such as to de- 
cessity of a mand a compound instead of a simple — a confederate instead 
boundary line f a §0 i e government, the essential points which will re- 
, f , , main to be adjusted, ^will be to discriminate the objects, as 
governments. ^ ar as & can De done, which shall appertain to the different 
provinces or departments of power: allowing to each 
the most ample authority for fulfilling those objects which 
may be committed to its charge. Shall the union be consti- 
tuted the guardian of the common safety? Are fleets and 
armies, and revenues, necessary to this purpose? The 
government of the union must be empowered to pass all 
laws, and to make all regulations, which have relation to 
them. The same must be the case in respect to commerce, 
and to every other matter to which its jurisdiction is per- 
permitted to extend. Is the administration of justice between 
the citizens of the same state, the proper department of the 
local governments ? These must possess all the authorities 
which are connected with this object, and with every 
other that may be allotted to their particular cognizance 
and direction. 3 

. 19 g ' An entire consolidation of the states into one complete 

Alienation of national sovereignty, would imply an entire subordination of 
state sover- the parts ; and whatever powers might remain in them, 
eignty in W011 id be altogether dependent on the general will. But as 

three cases ^ Q , n f the convention ' ft. e. the constitution) 'aims 
only. . , , . . . 

only at a partial union or consolidation, the state govern- 
ments would clearly retain all the rights of sovereignty which 
they before had, and which were not, by that act, exclusively m 
delegated to the United, States. This exclusive delegation, or 
rather this alienation of state sovereignty, would only exist 
in three cases: (1.) where the constitution in express terms 

1 The Federalist, pp. 403-4. 

2 See The Federalist, No. 46. 

3 The Federalist, No. 23, pp. 105-106.— Hamilton. 



OF THE UNITED STATES. 201 

granted an exclusive authority to the union : (2.) where 
it granted, in one instance, an authority to the union, and 
in another prohibited the states from exercising the like au- 
thority : and, (3.) where it granted an authority to the 
union, to which a similar authority in the states would be 
absolutely and totally contradictory and repugnant. I use 
these terms to distinguish this last case from another which 
might appear to resemble it, but which would, in fact, be 
essentially different : I mean where the exercise of a con- 
current jurisdiction, might be productive of occasional in- 
terferences in the policy of any branch of administration, 
but would not imply any direct contradiction or repug- 
nancy in point of constitutional authority. These three 
cases of exclusive jurisdiction in the federal government, 
may be exemplified by the following instances : — The last 
clause but one in the eighth section of the first article, 
provides expressly, that congress shall exercise u exclusive 
legislation " over the district to be appropriated as the seat 
of government. This answers to the first case. The first 
clause of the same section empowers congress " to lay and 
collect taxes, duties, imposts, and excises ;" and the second 
-clause of the tenth section of the same article declares, 
that "no state shall, without the consent of congress, lay 
any imposts or duties on imports or exports, except for the 
purpose of executing its inspection laws." Hence would 
result an exclusive power in the union to lay duties on 
imports and exports, with the particular exception men- 
tioned; but this power is abridged by another clause, 
which declares, that no tax or duty shall be laid on ar- 
ticles exported from any state; in consequence of which 
qualification, it now only extends to the duties on imports. 
This answers to the second case. The third will be found 
in that clause which declares that congress shall have 
power "to establish an uniform rule of naturalization 
throughout the United States." This must necessarily be 
exclusive : because if each state had power to prescribe 
■a distinct rule, there could be no uniform rule/ l 

1 The Federalist, No. 32, pp. 140-141. Hamilton. 

* The principles established in a former paper teach us that the states 



202 POLITICAL AND CONSTITUTIONAL LAW 

g 127. 'It is not a mere possibility of inconvenience in the ex- 

A fundament- ercise of powers, but an immediate constitutional repugnancy,, 

al rule of con- that, can ^ implication alienate and extinguish a pre-exist- 

s i u iona m- .^ r jg^ f sovereignty. The necessity of a concurrent 

jurisdiction in certain cases, results from the division of 

the sovereign power; and the rule, that all authorities,, 

OF WHICH THE STATES ARE NOT EXPLICITLY DIVESTED IN FAVOR 
OF THE UNION, REMAIN WITH THEM IN FULL VIGOR, is not Only 

a theoretical consequence of that division, but is clearly- 
admitted by the whole tenor of the instrument which con- 
tains the articles of the proposed constitution. We there 
find, that notwithstanding the affirmative grants of general 
authorities, there has been the most pointed care in those- 
cases where it was deemed improper that the like authori- 
ties should reside in the states, to insert negative clauses^ 
prohibiting the exercise of them by the states. The tenth 
section of the first article consists altogether of such [neg- 
ative] provisions. This circumstance is a clear indication 
of the sense of the convention, and furnishes a rule of in- 
terpretation out of the body of the act, which justifies the 
position I have advanced, and refutes every hypothesis to- 
the contrary/ 1 

1 128. Par- And who, according to Hamilton, were the parties to the* 

ties to the fed- constitution? < Every constitution for the United States 

eral constitu- must i nev jt a bly consist of a great variety of particulars,, 

in which thirteen independent states are to be accom- 

will retain all pre-existing authorities which may not be exclusively del- 
egated to the federal head ; and that this exclusive delegation can only 
exist in one of three cases : where an exclusive authority is, in express 
terms, granted to the union ; or where a particular authority is granted 
to the union, and the exercise of a like authority is prohibited to the 
states ; or where an authority is granted to the union with which a simi- 
lar authority in the states would be utterly incompatible. Though these 
principles may not apply with the same force to the judiciary, as to the 
legislative power ; yet I am inclined to think, that they are, in the main, 
just with respect to the former, as well as to the latter. And under this 
impression, I shall lay it down as a rule, that the state courts will retain 
the jurisdiction they now have, unless it appears to be taken away in 
one of the enumerated modes.' Federalist, No. 82, p. 377. Hamilton, 
i Id. p. 142. 



OF THE UNITED STATES. 203 

modated in their interests or opinions of interest 

Hence the necessity of moulding and arranging all the 
particulars which are to compose the whole, in such a 

manner as to satisfy all the parties to the compact 

The intrinsic difficulty of governing thirteen states, in- 
dependent of calculations upon an ordinary degree of pub- 
lic spirit and integrity, will, in my opinion, constantly im- 
pose on the national rulers the necessity of a spirit of accom- 
modation to the reasonable expectations of their constituents/ l 

"We are now in possession of the theory held by the \ 129. 
framers of the federal constitution; and by the authors of 
The Federalist, that is to say, by Madison and Hamilton; 
for but a very few numbers of that luminous work were 
written by Jay, and to the theory held by him, those num- 
bers afford no definite clue. 2 It seemed to be of great im- 
portance that those original expounders of the constitu- 
tion should be permitted to speak for themselves ; for, not 
only is their authority unquestioned, but great injustice 
has been done to their names by writers who have claimed 
them in support of the imperial school. Let us place be- 
side their views, expressed in their own language, the fol- 
lowing singular array of strange propositions, in support 
of which, not a single reference to any authority is made 
by their author. 

' The collective People of the United States as a politi- 
cal unit, existed prior to the adoption of the Constitution, 
and was not therefore called into being as a consequence 
of that instrument. The Constitution was not the work of 
the separate states, regarding those states simply as organ- 
ized governments, nor of the peoples of those states, re- 
garding those peoples as separate and independent sover- 

1 This was the language of Hamilton in speaking of amendments to 
the federal constitution. See The Federalist, No. 85, pp. 402-403. That 
he regarded the states as the parties and only parties to the constitu- 
tion, is shown by his language previously quoted, at $ 119 and follow- 
ing. 

2 The Federalist is composed of eighty-five numbers ; of which, six 
only were written by Jay ; while Madison contributed iwenty-nine f and 
Hamilton, fifty. 



204 POLITICAL AND CONSTITUTIONAL LAW 

eign aggregates or communities ; but it was the work of 
the People of the United States as a whole, as a political 
unit, — not voting together, it is true, in the process of 
adoption, as a consolidated mass of electors, but, for rea- 
sons of policy and convenience, acting in their respective 
commonwealths. As a necessary consequence, the powers 
held by the general government were not delegated to it 
by the several states, regarding those states simply as or- 
ganized governments, nor by the peoples of the several 
states, regarding those peoples as separate and independ- 
ent sovereign aggregates or communities; but were dele- 
gated to it by the people of the United States as a whole, 
abstracted from their local relations to the various com- 
monwealths of which they were also members; although, 
in the very process of delegation, this one people did not 
vote together as a consolidated mass of electors, but, for 
certain reasons of policy and convenience, acted in their 
respective states. The powers not thus granted by the 
people of the United States to its general government, 
were not reserved by the several states to themselves; for, 
as these states as such did not grant any powers, they 
could not reserve any. But they were reserved by the 
People of the United States to themselves, or to the several 
states. Thus the People of the United States, as a na- 
tion, is the ultimate source of all power, both that con- 
ferred upon the general government, that conferred upon 
each state as a separate political society, and that retained 
by themselves/ 

1 This, in substance/ says Mr. Pomeroy, ' is the view of 
the Constitution advocated by Hamilton, by Jay, by Mar- 
shall, by Story, by Webster, and upheld by the judgments 
of the Supreme Court during the earliest years, and while 
it continued under the leadership of its most illustrious 
head, Chief Justice Marshall/ 1 

a 130 Jay's Hamilton maintained that ' The state governments, by 
view. their original constitutions, are invested with com- 

^omeroy's Constitutional Law, \\ 28-29. 



OP THE UNITED STATES. 205- 

plete sovereignty/ 1 His developed theory we have 
already given ; not in our language, nor on the authority 
merely of our own assertion, but in his own words. It no- 
where differed, essentially, from that of Madison ; and not 
a line from the pen of either, points to the adoption of the 
constitution by the people of the United States as one, 
political body, or as other than thirteen sovereign 

STATES. 

The theory of Jay, as already observed, is not to be 
learned from The Federalist papers : unless we collect it 
from his opening, wherein he says — ' It is well worthy of 
consideration, therefore, whether it would conduce more 
to the interest of the people of America, that they should^ 
to all general purposes, be one nation, under one federal 
government, than that they should divide themselves into 
separate confederacies, and give to the head of each the 
same kind of powers which they are advised to place in 
one national government/ 2 He nowhere speaks, in The 
Federalist, of the adoption of the constitution by the one 
body politic ; of which, indeed, no one of that day had any 
idea. It was he who, in the character of chief justice of 
the United States, afterward announced and sanctioned 
the following position: ' Every State Constitution is a 
Compact, made by and between the citizens of a State, to 
govern themselves in a certain manner; and the Constitu- 
tion of the United States is likewise a Compact, made by 
the people of the United States, to govern themselves, as 
to general objects, in a certain manner/ 3 In the case before 
him, he used the phrase, i people of the United States/ 
very nearly in accordance with the imperial view above 
set forth; 4 but it can hardly be supposed, consistently with 
his known integrity, that he designed to convey the idea, 
that the people of the whole country, in the capacity of a 
single political community, had ordained and established th& 
federal constitution. 

ir The Federalist, No. 31, p. 138. 

2 The Federalist, No. 2, pp. 10-11. 

3 Chisholm Ex'r v. Georgia, 2 Dall. Eep. 470-471. 

4 See note to § 110, ante. 



206 POLITICAL AND CONSTITUTIONAL LAW 

\ 131. Chief Premising that, by some of our leading statesmen and 
Justice Mar- jurists, 'the states have been continually confounded with 
shall' s posi- ^ e mere ru ling apparatus or governments of these socie- 
ties f 1 and that Chief Justice Marshall himself, on many oc- 
casions, as the following will show, speaks of 'the States in 
their sovereign capacities ' and the ' State sovereignties ' when 
only referring to 'the State governments;' the theory of 
that great and eminent jurist shall now be given at length 
in his own words, and as expressed by him in his judicial 
capacity. 

Delivering the opinion of the Supreme Court of the 
United States, in McCulloch v. The State of Maryland, he 
said : l The convention which framed the constitution, was, 
indeed, elected by the legislatures of the several states. 
But the instrument, when it came from their hands, was a 
mere proposal, without obligation, or pretensions to it. It 
was reported to the then existing congress of the United 
■States, with a request that it might " be submitted to a con- 
vention of delegates, chosen in each state, by the people thereof, 
under the recommendation of its legislature, for their assent 
and ratification." This mode of proceeding ivas adopted ; and 
by the convention, by congress, and by the state legisla- 
tures, the instrument was submitted to the people. They 
acted upon it, in the only manner in which they can act 
safely, effectively, and wisely, on such a subject, by assem- 
bling in convention. It is true, they assembled in their 
.several states ; and where else could they have assembled? 

!N"0 POLITICAL DREAMER WAS EVER WILD ENOUGH TO THINK OF 
iBREAKING DOWN THE LINES WHICH SEPARATE THE STATES AND 
OF COMPOUNDING THE AMERICAN PEOPLE INTO ONE COMMON 

mass. Of consequence, when they act, they act in their 
states. But the measures they adopt do not, on that ac- 
count, cease to be the measures of the people themselves, or 
become the measures of the state governments.. From 

THESE CONVENTIONS THE CONSTITUTION DERIVES ITS WHOLE 

authority The assent of the states, in their 

.sovereign capacity, is implied in calling a convention, and 

jl Pomeroy's Const. Law, \ 38. 



OF THE UNITED STATES. 207 

an thus submitting the constitution to the people. 1 But 
the people were at perfect liberty to accept or reject it; 
..and their act was final. It required not the affirmance of, 
and could not be negatived by, the state governments. 
The constitution, when thus adopted, was of complete obli- 
gation, and bound the state sovereignties. 

1 It has been said, that the people had already surren- 
dered all their powers to the state sovereignties, and had 
nothing more to give. 2 But, surely, the question whether 

THEY MAY RESUME AND MODIFY THE POWERS GRANTED TO GOV- 
ERNMENT, DOES NOT REMAIN TO BE SETTLED IN THIS COUNTRY. 

JMuch more might the legitimacy of the general govern- 
ment be doubted, had it been created by the states. The 
powers delegated to the state sovereignties, were to be 
exercised by themselves, not by a distinct and independent 
sovereignty, created by themselves. To the formation of 
.a league, such as was the confederation, the state sover- 
eignties were certainly competent. But when, " in order 
to form a more perfect union," it was deemed necessary to 
change this alliance into an effective government, possess- 
ing great and sovereign powers, and acting directly on the 
people, the necessity of referring it to the people, and of 
deriving its powers directly from them, was felt and ac- 
knowledged by all.' 3 

' This government is acknowledged by all to be one of 
enumerated powers. The principle, that it can exercise only 
the powers granted to it, would seem too apparent to have 

1 Here, the sense intended by ' the states, in their sovereign capacity ,' 
is obvious ; for it was not ' the states in their sovereign capacity,' accord- 
ing to the present understanding of the expression, but the state legisla- 
tures, that called the conventions, 

2 This, in the sense of others, would have meant that the people 
(whether of each state or of the whole country) had surrendered all their 
powers to themselves ! It meant, that the people of each state had sur- 
rendered all their powers to their state government. The argument 
which he was refuting, was, that, as the authority throughout had been, 
at foundation, the action of the state governments, they were to be con- 
sidered as the authors and creators of the federal constitution. 

3 And this was the doctrine, which, as opposed to the argument that 
the federal government was created by the state governments, he was en- 
deavoring to establish. « 



208 POLITICAL AND CONSTITUTIONAL LAW 

required to be enforced by all those arguments which its 
enlightened friends, while it was depending before the 
people, found it necessary to urge. That principle is now 
universally admitted. But the question respecting the 
extent of the powers actually granted, is perpetually aris- 
ing, and will probably continue to arise as long as our sys- 
tem shall exist/ 1 

The language of the same great judge in G-ibbons v. Og- 
den, is this : — 

1 As preliminary to the very able discussion of the con- 
stitution, which we have heard from the bar, and as having 
some influence on its construction, reference has been made 
to the political situation of these states, anterior to its 
formation. It has been said, that they were sovereign, 
were completely independent, and were connected with 
each other only by a league. This is true. Eut, when 
these allied sovereigns converted their league into a gov- 
ernment, when they converted their congress of ambassa- 
dors, deputed to deliberate on their common concerns, and 
to recommend measures of general utility, into a legisla- 
ture, empowered to enact laws on the most interesting 
subjects, the whole character in which the states appear, 
underwent a change, the extent of which must be deter- 
mined by a fair consideration of the instrument by which 
that change was effected/ 2 

2 132 -^° doubt can nence De entertained of the theory of 

Chief Justice Marshall. The sense in which he employed 
certain phrases or expressions, was, without doubt, a per- 
version of their strict political meaning. He speaks of 
the governments, state and federal, as so many sovereignties. 
1 The powers delegated to the State sovereignties were to be 
exercised by them, not by a distinct and independent sover- 
eignty, created by themselves.' But his meaning cannot be 
mistaken. 

' No political dreamer was ever wild enough to think 
of breaking down the lines which separate the states,. 

i 4 Wheat. 316 ; 4 Pet. Cond. 471-473. 

2 9 Wheat. 1 ; 5 Pet. Cond. 565. 



OP THE UNITED STATES. 209 

and of compounding the American people into one 
common mass/ This is a very complete answer to the 
imperial theory ; though no political dreamer of that day 
had been wild enough to think of seriously proposing it. 
In answer to the argument, 'that the people had already 
surrendered all their powers to the State sovereignties, and 
had nothing more to give, ' he replies, — ' But, surely, the 
question whether they may resume and modify the powers 
granted to government, does not remain to be settled in this 
country/ — doubtless referring to the action of the colonies 
in resuming to themselves the powers which had been 
vested in the government of Great Britain, and to the ac- 
tion of the states in resuming the powers which had been 
vested in the government of the United States by the 
Articles of Confederation ; not meaning, I apprehend, that 
the question, whether the people of any one state may 
resume and modify the powers granted to the general 
government, did not remain to be settled in this country ; 
although he had spoken of the people throughout in a 
manner and connection that might seem to bear that con- 
struction. 1 

1 An ambiguous use of terms and phrases is not always to be easily 
avoided. But to correct such fallacies as arise therefrom, in our 
political law, we have only to examine the things themselves which are 
the objects of that law, and ascertain their proper relations. "We must 
never lose sight of the first great principle of our system, that 'all power 
is inherent in the people ; ' that is, in the original sovereigns, the co- 
equal members of the political body or state, who are properly termed 
1 elector sJ These are they who make and unmake the organic law, — 
our constitutions, which are the only legitimate expression of the sover- 
eign will. The principles and provisions of these constitutions, are in- 
tended to be carried into practical operation and effect, by means of 
certain enumerated powers which are therein delegated to such officers 
as may from time to time be elected by and from among the electors. 
These officers are the government, though nothing but agents with their 
instructions written in the constitutions and laws under which they are 
elected. These three things, ' electors ' who are sovereign, l constitutions ' 
which express their will, and ' officers ' who are agents to carry out that 
will — these are the essentials and the only essentials of our political sys- 
tem ; and therefore, whether we have three names or three hundred by 
which to call them, we know that only three things can be intended. 
The 'electors' are not one single body of people. They are many, sev- 

N 



210 POLITICAL AND CONSTITUTIONAL LAW 

£ 133 Web- Justice Story -was, unquestionably, an advocate of the 
ster's doc- theory imputed to him, and also adopted, by Mr. Pomeroy. 1 
trine. £ u | ^ s materials therefor were mere assertions, again and 

again disproved by the records themselves, and his method, 
that of all the imperialists, a careful and studious attempt 
to obscure the records, or deny their veracity. I cannot 
but wish, for the sake of the dignity of the jurist's vocation, 
that so serious a charge could not in justice be made. 
But the records are before me. 2 

A different theory, was that of the immortal Webster. 
Witness his justly celebrated letter to the Barings of 

eral, sovereign and independent bodies ; and each of these bodies is a 
political state. To say it is not sovereign, is to contradict our funda- 
mental doctrine, that ' all power is inherent in the people.' If indeed 
it were true, that the governments of the states, which Chief Justice Mar- 
shall called the state sovereignties, were sovereign ; then, as they (by 
their commissioners in the general convention) framed the constitution, 
and referred it to the people, it might be said that the people acted by 
their permission, that the sovereignties which framed and ordained it, 
were the governments of the states— i. e., the state officers. 

1 See I 129, ante. 

2 Story may hardly be said to have argued the imperial or absolutist 
theory. It was reserved to Pomeroy to give it its true form. The 
learned ' Griswold Professor of Political Science in the University of 
New York ' is certainly aware of the ' infinite regress ' imposed upon the 
bold adventurer in search of 'the political unit that lies behind.' But 
he cautiously touches but one of the links of the infinite chain. Once 
adopt the principle of his reasoning, and we are lost in the clouds. Let 
us, at some risk, pursue it a moment. The several states composing the 
united States, are the creatures of the one body politic composed of 
the whole people of the United States. The United States, as states 
united, and the several states, as separate political societies, are in a 
position of permanent subordination to ' the political unit that lies be- 
hind' — i. e., the people of the United States. (Pomeroy's Const. Law, 
$§ 42 a, 43.) This upon the imperial authority of the imperial princi- 
ple — the absolute authority of the absolutist ! But if the principle be 
authority for Americans, we must stand by it. Thus, then, the people 
of the United States — ' the political unit that lies behind ' our political 
constitutions, is a creature of, and in a position of permanent subordi- 
nation to, humanity — the people of the whole world : the principle 
of humanity is thus the sovereign of the whole human race. But the 
process of this reasoning demands 'the political unit that [still] lies be- 
hind.' Behold, then ! humanity is the creature of, and in a position of 
permanent subordination to — G-od ; the ' I am ' that pervades it and 



OF THE UNITED STATES. 211 

Xondon, in 1839. — 'Your first inquiry is, "Whether the 
legislature of one of the States has legal and Constitu- 
tional power to contract loans at home and abroad ? " To 
this I answer, that the Legislature of a State has such 
power; and how any doubt could have arisen on this point, 
it is difficult for me to conceive. Every State is an inde- 
pendent, sovereign political community, except in so far 
as certain powers, which it might otherwise have exer- 
cised, have been conferred on a General Government, es- 
tablished under a written Constitution, and exerting its 
authority over the people of all the States. This General 
Government is a limited Govern ment. Its powers are 
specified and enumerated. All powers not conferred upon 
it still remain with the States and with the people. The 
State Legislatures, on the other hand, possess all usual and 
•extraordinary powers of Government, subject to any 
limitations which may be imposed by their own Constitu- 
tions, and with the exception, as I have said, of the opera- 
tion on those powers of the Constitution of the United 
States/ 1 It should be observed, that these were the 
serious and mature convictions of a giant mind, not col- 
ored or warped, as on some previous occasions, by the heat 
of partisan debate. 

As to ' the judgments of the Supreme Court during its 
•earliest years, and while it continued under the leadership 
of its most illustrious head, Chief Justice Marshall f these 
judgments, as we have seen and shall see, instead of sup- 
porting the imperial theory, are, so far as their authority 
goes, 2 in direct opposition thereto. 3 They fully support 
the doctrine of Webster, that 'Every State is an independ- 

gives personality to everything that can feel and say 'I am.' But what 
was that inexorable fate decreed for him who should search for ' the po- 
litical unit that lies behind ' ? He who will reason, is doomed to follow 
the light of reason. Eeason, upon the principle adopted, demands a 
continuance of the search ; she demands, in the name of that principle, 
1 the political unit that [still] lies behind.' 

1 See Nile's Eegister, Vol. lvii, pp. 273-274. 

2 As to the questions beyond the jurisdiction of this Court, see^os^, \ 
147 et seq. 

3 Some of these judgments were formerly referred to in g 56 et seq. 



212 POLITICAL AND CONSTITUTIONAL LAW 

ent, sovereign political community, except so far as certain 
powers, which it might otherwise have exercised, have 
been conferred on a G-eneral Government/ Let us notice 
first the original authorities for this proposition. 

\ 134. State The original authorities are found in the sovereign legisla- 
sovereignty. tionby l the people' themselves. This sovereign legislation 
appears,/or the very first time, in the several constitutions of the 
original states. The establishment of a state constitution, 
is, of itself, the highest act of political sovereignty. And 
what do the state constitutions proclaim ? The sovereignty 
of their authors, as a matter of course. Thus that of 
Massachusetts : ' The people of this commonwealth have 
the sole and exclusive right of governing themselves as a 
free, sovereign, and independent state ; and do, and forever 
hereafter shall, exercise and enjoy every power, jurisdic- 
tion, and right, which is not, or may not hereafter be, by- 
them expressly delegated to the United States of America 
in congress assembled/ 1 That of New Hampshire, speaks 
the same language. 2 Clauses expressing or implying the 
same Will be found in all. Yet these or the like declara- 
tions were wholly unnecessary. The bodies who ordain 
and establish the organic law, either of the states or of 
the United States, cannot but be sovereign, free and inde- 
pendent. And who these are, or were, the records of their 
sovereign legislation have plainly disclosed. 

1 The ratification of the conventions of nine states shall be 
sufficient for the establishment of this constitution between 
the states so ratifying the same/ So says the federal con- 
stitution itself. 3 It was the plan of the convention that 
framed it, • that it should be submitted to a Convention of 
Delegates, chosen by each state by the people thereof, under 
the recommendation of its legislature, for their assent and 
ratification.' 4 The assent of the several states, each acting 
by its own authority, as we have seen from the records 
themselves, was given in the manner proposed by the gen- 

1 Const. Mass. Pt. I. Art. 4 ; Pt. n. first paragraph ; also ch. vi. 

2 Const. N. H. Pt. I. Art. 7. 

3 See the last article. 

4 See ante \ 83 a. 



OF THE UNITED STATES. 213 

•eral convention of the states. i This assent and ratifica- 
tion, was to be given by the people, not as individuals com- 
posing one entire nation, but as composing the distinct and 
independent states to which they respectively belonged. 
And each state, in ratifying the constitution, was consid- 
ered as a sovereign body, independent of all others, and 
only to be bound by its own voluntary act/ 1 So said Madi- 
son ; and with him., one and all of the Nationals (the party 
which had advocated a strong national government in the 
general convention) were fully agreed. 

1 The enumeration in the constitution of certain rights, 
•shall not be construed to deny or disparage others re- 
tained by the people. The powers not delegated to the 
United States by the constitution, nor prohibited by it to 
the states, are reserved to the states respectively or to the 
people/ So again says the federal constitution. 2 It is asked 
by whom were they so reserved ? The answer is plain. 
* The body which conferred portions of its powers upon 
the government which it had created, is alone capable of 
reserving the residuum to itself, or to any other body/ 3 
That body, as we have seen, was the body of electors, i the 
people/ of each state. 4 

And what, upon the question, is the doctrine of the 
Supreme Court of the United States ? So late as 1842, in 
a case where the question of state sovereignty was of 
primary importance and directly before it, that court held, 
that 'when the Ee volution took place, the people op 

EACH STATE BECAME THEMSELVES SOVEREIGN J and, in that 

character, hold the absolute right to all their navigable 
waters and the soils under them, for their common use, 
subject only to the rights since surrendered by the consti- 
tution to the general government / 5 i and when the peo- 
ple of New Jersey took possession of the reins of gov- 

1 The Federalist, No. 39, pp. 176-7 ; No. 40, pp. 181-182. 

2 Art. ix and x, Amendments. 

3 Pomeroy's Const. Law, \ 101. 

4 See the several ordinances of ratification, under \ 85. We are 
wholly at a loss to find the ordinance of ratification by ' the people of 
the United States.' 

5 Martin et al. v. Waddell, 16 Peters, 367-410. 



214 POLITICAL AND CONSTITUTIONAL LAW 

• ernment, and took into their own hands the powers of 
sovereignty, the prerogatives and regalities which be- 
fore BELONGED EITHER TO THE CROWN OR THE PARLIAMENT,. 
BECAME IMMEDIATELY AND RIGHTFULLY VESTED IN THE STATE/ 1 

It is unnecessary to refer to the earlier decisions of 
the Supreme Court of the United States, in which the sov- 
ereignty of the 'people' has been recognized as identical 
with the sovereignty of the states as political communities- 
For, notwithstanding all that was said and written in sup- 
port and defence of the (not unnatural) tendency of things 
toward centralization during the late war, the present 
language of that court is in perfect accord with the federal 
theory. 'A State/ says that court, 'in the ordinary sense 
of the [Federal] Constitution, is a political community of 
free citizens, occupying a territory of denned boundaries,, 
and organized under a government sanctioned and limited, 
by a written Constitution, and established by the consent 
of the governed. It is the union of such States under a, 
common Constitution, which forms the distinct and greater 
political unit, which that Constitution designates as the 
United States/ 2 In the same case, that court declares,, 
that 'the preservation of the States and the maintenance 
of their governments, are as much within the design and 
care of the [Federal] Constitution, as the preservation of 
the Union and the maintenance of the national govern- 
ment/ and that ' The Constitution, in all its provisions, 

looks to AN INDESTRUCTIBLE UNION COMPOSED OF INDESTRUCT- 
IBLE States/ 

\ 135. In- The true theory of state sovereignty, put in a simple 

ternal sover- f ornij seems to be this: — The American colonies, by the* 

eign y o a R evo i u ^ on became severally free, sovereign and hide- 

able. pendent states. 3 Now it is a principle of universal law,. 

that a state once sovereign, cannot, by any league, treaty,. 

compact, or other act of its will, substantially transfer, 

cede or alien, any essential of its self-existence as a sover- 

1 Martin et al. v. "Waddell, 16 Peters, 416. See the cases to this point 
cited in note to g 142 post. 

2 Texas v. White, 7 Wall. 721. 

3 See I 134 above. 



OF THE UNITED STATES. 215 

eign state. 1 Every essential of its self-existence, therefore, 
each state retains; and consequently each state may do at 
all times whatever it shall judge to be necessary in order 
to preserve its existence. But states may doubtless con- 
federate together for their common advantage, and bind 
themselves to abide the decision of a given majority of 
their number in matters equally affecting the welfare of 
all. In which case, as no one among equals is competent 
to make law for another, no one can insist on its own con- 
struction of its duties and rights in relation to the others. 
"No state is so sovereign as to be able to do that. 

The argument is drawn from the nature of man. All 
men by nature are equally free, sovereign and independent. 
No man can cede, transfer or alien, by any agreement, 
compact, or other act of his will, any essential of his self- 
existence as a morally responsible being; and therefore 
may at all times, and under all circumstances alike, do 
whatever he shall judge to be necessary to his self-preser- 
vation; to the preservation, we may say, of his own in- 
herent and inalienable right of internal self-government. 
Now if a man cannot part with this right, neither can a 
body of men, a political community or state. If, however, 
a man can oblige himself, by his free consent, and without 
parting with his right of internal self-government (his 
essential liberty or freedom), to obey such laws as are 
founded in common consent, and so become a member of 
a political society or state; so can bodies of men, political 
societies or states, without ceding their sovereignty, or in- 

1 ' This doctrine,' says Mr. Pomeroy (in his Constitutional Law, note 
to § 55), ' that a sovereign state cannot bind itself by any treaty or com- 
pact by which its sovereignty is wholly or substantially surrendered or 
lessened, is now maintained by the leading writers on Public and Inter- 
national Law.' He cites Martens, Precis du Droit des Gens, \ 52 (Paris,. 
1864) ; Ortolan, Diplomatic de la Mer, lib. I, ch. v, p. 90 (Paris, 1864) ; 
Hautefeuille, Des Droits et des Devoirs des Nations Neutres, t. I, pp. 8- 
10 (Paris, 1858) ; Heffter, Droit International Public, § 83 (Paris, 1866) ;. 
Pinheiro-Ferreira, note to § 58 of Martens (Ed. of 1864). These are 
standard authorities ; many others might also be added ; but the doc- 
trine has never been questioned, I believe, when properly stated, by any- 
respectable authority. No state in the world is sovereign, properly- 
speaking, except in relation to its own internal affairs. 



216 POLITICAL AND CONSTITUTIONAL LAW 

ternal right of self-government, oblige themselves, in like 
manner, to obey such laws as are made by common con- 
sent, and so become members of a larger society or con- 
federacy of states. If such a confederacy amounts to 
nothing but ' a rope of sand/ the same is true of the union 
of individuals composing a state. Whether we apply the 
argument to individuals or to states, the result is the same. 
If our system is to rest on the natural, inherent, and in- 
alienable rights of man, the veracity of the argument must 
be conceded in relation to each individual, considered as 
an equal member of the state. If the states, in our sys- 
tem, are essential to the security of those rights, the 
soundness of the argument is not to be questioned in rela- 
tion to each state, considered as a member of the union. 

§136. The The maintenance of the boundary line between the in- 
only escape ternal and external sovereignty of states, as well as of in- 
from the tyr- dividuals, 1 upon which the doctrine of inalienable rights is 
anny o ma- f 01in( j e( ^ } g ^he on ]j possible escape from the tyranny of 
factions and majorities in governments resting on common 
consent. For, as is self-evident, if every right be subject 
to the will of the majority, not even the rights of con- 
science can be secure: our declarations of inherent and in- 
alienable rights, contained in our constitutions, must pass 
for naught. It must not be overlooked, that our American 
political system was originally proposed and established 
upon the basis of the natural and inalienable rights of man; 
that all was done for the sole and exclusive purpose of 
securing the enjoyment of those rights to each and to every in- 
dividual; and that the states were supposed to be quite as 
necessary a means to this end as the union of the states. 2 
It cannot be pretended that the basis was unsound, that 
the purpose was illegitimate, or that the means were un- 
necessary. Nature herself takes care, that the separate 
and distinct organization, the self-existence, of each of the 
individual members of the state, shall be continued and 
preserved; that their lives and energies shall not be 

1 Anie, g§ 13, 14, 15. 

2 Ante, I 121. 



OF THE UNITED STATES. 217 

moulded into a single consolidated mass of flesh and blood, 
and their moral and intellectual capacities centered in a 
single head. It is equally essential that the independent 
organization, the internal sovereignty and self-existence, 
of each of the states of the union should be inviolably 
secured and preserved, in order to prevent our scheme of 
self-government from proving an absolute failure, and the 
government of the union from becoming an imperial, des- 
potic, and irresponsible head. This has never been ques- 
tioned, and will never be denied, by any true friend of the 
cause of humanity. Nor can it be doubted, that the right 
of self-preservation, though not an inherent or necessary 
attribute of any political government, inheres in each sep- 
arate community of men considered as a state, in the very 
same sense that it inheres in every man regarded as a 
natural individual, and cannot be ceded or aliened to 
another. If, then, each state, as each individual member 
of society, is to be secured and preserved in its full, essen- 
tial and necessary integrity, — in all that is essential to 
its self-support and self-existence, — it unquestionably fol- 
lows, that each state must have, at all times, and under 
any and all circumstances, the sovereign right to do what- 
ever it may judge to be absolutely necessary to such, its 
own security and self-preservation. 

The question for the people is therefore reduced to this : 
— Shall we continue to have a union of states, or shall 
we make it a single, central, imperial and despotic gov- 
ernment ? 



dissolved ? 



No doubt the people of this country are determined, and \ 137. May 
liave always been determined, to have, maintain and pre- the ^°^ ^ e 
serve, A UNION OF STATES. The name they have " 
chosen for themselves, < THE UNITED STATES of 
America;' THE FLAG OF OUE UNION, with its ever 
glorious Stars, emblems of States United are their sov- 
ereign, sacred, and patriotic pledges to each other, of this 
their unwavering and invincible determination. 

But, it is said, if our union be only a union of states, it 
may be rightfully dissolved by the states ! This is unques- 



218 POLITICAL AND CONSTITUTIONAL LAW 

tionably true. And it is equally true, that if it were a. 
union of individuals, it might be as rightfully dissolved by 
those individuals. In the words of Chief Justice Marshall,, 
t the question whether the people may resume and modify 
the powers granted to government, does not remain to be 
settled in this country/ 1 Neither man, humanity, nor 
political states, can create what cannot be destroyed. 
'The United States ' may be possibly destroyed by an 
amendment to the federal constitution — carried by a strict 
party vote in three-fourths of the state legislatures ! Let 
us hope that the spirit of our people will brook no such 
usurpations upon their sovereign will. 

It has also been said, that if the union be only a union 
of states, a single state may rightfully dissolve it at plea- 
sure. This is not true. Let us carefully examine the ar- 
gument for this position, and we shall find that it rests on 
a misapplication of the principle that a sovereign is bound 
by no law but his will. 

That a sovereign is bound by no law but his will, is true,, 
in the relations of men to one another, only in one sense; 
that is, as applied to internal self-government. It means 
that a man has a right to do as he wills concerning the di- 
rection and control of his own internal affairs, affairs relat- 
ing to none but himself. As extended to the sovereign 
power of a state, it means that that power may do as it 
wills in relation to the internal government of the state. 
If it were true in any other sense, then, among equals, 
one were subject to the government of another : a flat con- 
tradiction of terms would emerge. The power of a sover- 
eign legislature to repeal its enactments, is deduced from 
this internal right of self-government. Yet this is con- 
strued as a warrant for a state to repeal its original ratifi- 
cation of the federal constitution, and to so attempt a dis- 
solution of the union j as though that were a matter con- 
cerning no one but itself! As well might a man, by virtue 
of his right of internal self-government, attempt the disso- 
lution of the state of which he is a member — do as he wills,, 
and bid defiance to its laws. 

1 4 Wheat. 404. 



OF THE UNITED STATES. 219 

In support of the so-called right of secession, great im- 
portance is attached to the argument, that it was only by 
its ordinance of ratification that any one state became a, 
party to the federal constitution ; that therefore it may, by 
a repealing ordinance of a convention of its people, rescind 
the ordinance of ratification, and dissolve its relations and 
connections with the union. 1 As a maxim of universal 
law, it is everywhere admitted, that 'Nothing is so con- 
sonant to natural equity as that every compact should be 
dissolved by the same means that rendered it binding/ 
But is it strictly true, that it was only by its own ordinance 
that any state became a party to the constitution ? It will 
be remembered, that the last article of the instrument con- 
tained a condition upon which it should become binding, 
viz., that it be ratified by nine states at least ; so that, had 
it been ratified by eight only, their ratifications could have 
had no effect. Did the ratification of the ninth state, in and 
of itself, make it binding upon all ? Certainly not; that 
ratification was of no higher authority than any of the 
others; it only fulfilled the condition upon which one and 
all had agreed to be bound. When two or more have made 
a contract, it is certainly not for any one to say that he 
made it and may therefore annul it. The constitution was 
indeed a compact, to which it was necessary, by its terms,, 
that nine should accede, and to which, in fact, the thirteen 
states assented. ]STow apply the maxim. The means that 
rendered the constitution binding, was the assent or all. 

THE PARTIES. Bj the ASSENT OF ALL THE PARTIES, then, it 

may be dissolved. So long as it is considered a compact,, 
so long we are clear of the argument for secession. For 
no one ever imagined that a compact or contract could be 
rightfully dissolved by one of the parties to it, without the 
assent of the others. Natural equity requires, that whatever 
affects or concerns all, should have the approbation of all. And 
this is a maxim of universal law, no less than the one first 
mentioned. In fine, independently of compact, no state 
or nation can rightfully determine, by any mere act of its 

1 See Stevens's Constitutional View of the War, Vol. i, pp. 19-20, et 
seq. 



220 POLITICAL AND CONSTITUTIONAL LAW 

own, any one matter or thing, in relation to which, others 
with itself are equally concerned. It is only in relation to 
itself, and its own internal affairs, that the sovereignty of 
one is exclusive of another, and the action of one inde- 
pendent of external control. In relation to others, or 
matters of common and equal concern, it has no more than 
an equal voice; and is therefore subject to the voice of the 
majority. For among equals, the law of equality is the 
law of nature and of nations. 

138. The But was not the right of the people of each state, to re- 

nght to re- sume the powers of government, by some of the states ex- 

- 7 " pressly reserved in their ordinances of ratification ? The 

ers of govern- r J 

*nent. nrs t amendment of the federal constitution proposed by 

the ratifying conventions of Massachusetts and New Hamp- 
shire, was in these words : ' That it [the Constitution] 
explicitly declare, that all powers not expressly delegated 
by the aforesaid Constitution are reserved to the several 
states to be by them exercised/ South Carolina (in her 
ordinance) declared, 'that no section or paragraph of the 
said Constitution warrants a construction that the States 
do not retain every power not expressly relinquished by 
them and vested in the General Government of the Union/ 
Yirginia, 'that the powers granted under the Constitution, 
being derived from the people of the United States, may 
be resumed by them, whensoever the same shall be per- 
verted to their injury and oppression/ New York, 'that 
the powers of Government may be re-assumed by the peo- 
ple, whensoever it shall become necessary to their happi- 
ness; that every power, jurisdiction, and right, which is 
not by the said Constitution clearly delegated to the Con- 
gress of the United States or the departments of the Gov- 
ernment thereof, remains to the people of the several 
States, or to their respective State Governments, to whom 

they may have granted the same : Under these 

impressions, and declaring that the rights aforesaid cannot 
be abridged or violated, and that the explanations aforesaid 
are consistent with the said Constitution, and in confidence 
that the amendments which have been proposed to the 



OF THE UNITED STATES. 221 

said Constitution will receive an early and mature consid- 
eration : We, the said Delegates, in the name and in the be- 
half of the people of the State of New York, do, by these 
presents, assent to and ratify the said Constitution/ North 
Carolina declared, that 'each State in the Union shall re- 
spectively retain every power, jurisdiction and right, 
which is not by the Constitution delegated to the Congress 
of the United States, or to the departments of the general 
Government; nor shall the said Congress, nor any depart- 
ment of the said Government, exercise any act of author- 
ity over any individual in any of the said States, but such 
as can be justified under some power particularly given in 
the Constitution ; but the said Constitution shall be con- 
sidered at all times a solemn instrument defining the ex- 
tent of their authority/ Ehode Island, l that the powers 
of government may be resumed by the people, whenso- 
ever it shall be necessary to their happiness; 7 etc. etc., 
following in the very same language of New York. 1 

The foregoing declarations of Massachusetts, New Hamp- 1 139. 
shire, and North Carolina, were made by way of proposing 
amendments; those of South Carolina, Virginia, New 
York, and Ehode Island, by way of declaring the c impres- 
sions ' under which they acted in ratifying the instrument. 
As responsive to those proposing amendments ought to be 
considered the first ten amendments to the instrument, 
the ninth and tenth of which are these: — 'The enumera- 
tion in the Constitution of certain rights, shall not be con- 
strued to deny or disparage others retained by the people/ 
i The powers not delegated to the United States, by the 
Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people. ' To the states 
respectively, or to the people.' ' The states' here intended, are 
the state governments. i The people ' intended, are ' the peo- 
ple ' who ratified the constitution, the body of electors com- 
posing any one state, and speaking in their ordinance of 
ratification ; that is to say, the people of each state : for the 
people of the United States, as one political body, had, as 

1 See the several ordinances of ratification, ante, \\ 85-86. 



222 POLITICAL AND CONSTITUTIONAL LAW 

we have seen, nothing whatever to do with establishing 
either the federal or the state constitutions, and never once, 
in fact, were known in our political history. Even the 
assent of the American people as one body, is as clearly 
unevidenced as the assent of the European people as one 
body, to the European governments. In connection with 
the declarations of the ' impressions ' under which the states 
acted, in ratifying the constitution, should also be consid- 
ered the declarations of sovereign rights by the states 
themselves in their several state constitutions; 1 as well as 
the fact that the section of the federal constitution concern- 
ing the mode of amending that instrument, was a part of 
the original in view of which those l impressions' were de- 
clared, and that therefore the declarations of the right to 
resume the powers delegated, could not have been made 
with reference to any action by way of amendment. 

3 140. But ^ an y one °f ' tne states, or the people of any one 

state, can be said to have reserved a power, jurisdiction or 
right, the same must be said of every other : for, as in a 
union or state composed of free persons, so in a union of 
states, all are necessarily equal in right. 2 Partisans tell 
us that the question is settled, and forever put at rest, by 
the results of the war for the suppression of the late rebel- 
lion. Would they have us believe that ours is a govern- 
ment of force, and not of common consent ? What assur- 
ance have they that a government founded in force will 
not be soon overturned, and its founders and supporters 
brought to the bar of the people ? Let us stand on safer 
ground. i For, in politics as in religion, it is equally absurd 
to aim at making proselytes by fire and sword. Heresies in 
either can rarely be cured by persecution.' 3 Whether the right 
in question, the right to resume the delegated powers, was 

1 See 'Declaration or Bill of Rights,' to the General Form of a State 
Constitution, under \ 75, ante. 

2 Nor can congress incorporate into an act admitting a new state, condi- 
tions which would place the state in an unequal position with the other 
-states. 3 How. U. S. 212. 

8 John Jay, in No. 1 of The Federalist. 



OF THE UNITED STATES. 223 

or was not reserved by the states as sovereign political 
communities, can, I apprehend, be authoritatively decided 
and settled only by a constitutional majority of the sover- 
eign courts or conventions of the people j 1 not by any act 
of any instituted government, nor by any decision of any 
instituted court, but only in the manner in which the con- 
stitution itself was originally ordained and established. 
For, the acts of government, state or federal, are nothing 
but the acts of agents, and therefore cannot be competent 
to the settlement of a question of the paramount sover- 
eignty of the people : a truth which makes amendments to 
our constitutions, so far as they affect that sovereignty, null 
.and void, or at least of but little value, when such amend- 
ments are made by the state legislatures, and not submit- 
ted to the people. It should be recollected, that ' The 
■sovereignty of Government/ as the great Webster once 
said, 'is an idea belonging to the other side of the Atlantic. 
No such thing is known in North America. With us, all 
power is with the people. They alone are sovereign; and 
they erect what Governments they please. None of these 
Governments is sovereign/ 2 

So far, however, as relates to the right of the people of 
a single state, to resume the power it joined in granting to 
the federal governments ; it is certainly clear from what 
we have seen, that no such right can exist. 3 If it could 
indeed be supposed to exist, it would be nothing but the 
right of one state to give all the others a just cause of 
war ! The so called right of secession is such, that it can- 
not be stated except as a self-contradiction. It is nothing 
at its foundation but the right of a man to violate the 
rights of his neighbors, usurp their common liberties, and 
destroy their common peace. 

It has now been fully shown that our Union is a union * 141 p r j n . 
op states, as its name imports, and not a union of individ- ciples of the 
uals; that a union of states is possible only as based Union. 

1 See I 150, post. 

2 Webster's Speech (in the U. S. Senate) on the Calhoun Resolutions, 
1833. See Niles' Reg. VoL XLin, App. p. 170. 

3 See above, g 137. 



224 POLITICAL AND CONSTITUTIONAL LAW 

upon an organic law, established by them in their several 
sovereign capacities, and fixing the boundary line between 
the internal sovereignty of each and the external sover- 
eignty of all ; that this boundary line was present to the 
minds of the convention that framed the federal constitu- 
tion ; that they adopted the principle, that c whatever ob- 
ject of government is confined in its operation and effects 
within the bounds of a particular state, should be considered 
as belonging to the government of that state, and what- 
ever object of government extends, in its operation and 
effects, beyond the bounds of a particular state, should be 
considered as belonging to the government of the United 
States/ that to lessen or remove the difficulty, arising from 
discretionary construction on this subject, an enumeration 
of the particular instances, in which the application of the 
principle ought to take place, was attempted with much 
industry and care j' 1 and that, as to the federal govern- 
ment, i its jurisdiction extends to certain enumerated objects 
only ) its general powers are limited ; and the states, in all 
unenumerated cases, are left ' in the enjoyment of their 
sovereign and independent jurisdiction/ 2 

1 142. Con- -ft ^ s therefore clear, that it is only in relation to the 
struction of powers specifically enumerated in the federal constitution,, 
federal pow- as being conferred on the government thereby created, 
that any question can ever arise concerning the intended 
and legitimate operation of that government, or the ap- 
propriate sphere of its action ; and that here, in determin- 
ing the scope of its powers, the fundamental rule of inter- 
pretation and construction, is furnished by the principle 
that governed the convention of the states in framing the 
written expressions by which in terms those powers were 
conferred: the principle that limits the scope of those 
powers to t whatever object of government extends, in its 
operation and effects, beyond the bounds of a particular 
state/ 

To illustrate this, let us instance the power which is 

1 See \ 112, ante. 

2 Federalist, pp. 178, 182. 



ers. 






OF THE UNITED STATES. 225 

given to congress ' To regulate commerce with foreign na- 
tions, and among the several states, and with the Indian 
tribes.' 1 .It is very well known that the power to regulate 
commerce, was considered as one essentially necessary to 
the federal government. Now, does this power, by the 
terms in which it is given, extend to the regulation of the 
internal commerce of a state ? The terms are, i among the 
several states f not, as between the several states. Perhaps 
there might be a doubt, if no rule of interpretation and 
construction were given. But we have such a rule in the 
principle above stated. The internal commerce of a state, 
is not an object of government which extends, in its legiti- 
mate or necessary operation and effects, beyond the 
bounds of that state. It has therefore been decided by 
the Supreme Court of the United States, that the grant to 
congress of the power in question, does not extend to or 
embrace the purely internal commerce of a state; and that 
that commerce is necessarily left to the regulation under 
state authority. 2 

In the words of Chief Justice Marshall, again, * The 
genius and character of the whole government seem to be, 
that its action is to be applied to all the external concerns 
of the nation, and to those internal concerns [of the na- 
tion] WHICH AFFECT THE STATES GENERALLY, but not to those 

which are completely within a state, when they do not 
affect other states, and with which it is not necessary to 
interfere for the purpose of executing some of the general 
powers of the government/ 3 

1 Const. U. S. Art. 1, \ 8. 

2 21 How. U. S. Eep. 246, 247. See Am. Law Reg. for July, 1868, pp. 
520, 521. The principle of leaving each state free to the management 
of its own internal affairs, and confining the operation of federal pow- 
ers to their external relations, that is, to things in which all alike are 
equally interested, is fully established by the Supreme Court of the 
United States, as furnishing a criterion for the construction of those 
powers, by the following cases : — Gibbons v. Ogden, 9 Wheat. 1, 193, 
194, 203; Wilson v. Blackbird Creek Co., 2 Pet. 245; Cooley v. Port 
Wardens, 12 How. U. S. Rep. 299; Gilman v. Philadelphia, 3 Wallace's 
Rep. 713; New York v. Miln, 11 Pet. 102, 138 ; Smith v. State of Mary- 
land, 18 How. U. S. Rep. 71. 

3 Gibbon v. Ogden, 9 Wheat. 194. 





226 POLITICAL AND CONSTITUTIONAL LAW 

\ 143. Su- It is certainly clear, that the government of the United 
premacy of states can exercise no powers but such as are actually 
granted to it by the federal constitution ; and that the 
powers actually granted, can be such only as are expressly 
given, or given by necessary implication. 1 On the other 
hand, it is also clear, that within the sphere marked out for 
that government, it is clothed with supreme jurisdiction. 2 
The language of the sovereigns here is — 'This Constitu- 
tion, and the laws of the United States which shall be 
made in pursuance thereof, and all treaties made or which 
shall be made under the authority of the United States, 
shall be the supreme law of the land ; and the judges in 
every State shall be bound thereby, anything in the con- 
stitution or laws of any State to the contrary notwith- 
standing. The senators and representatives before men- 
tioned, and the members of the several State legislatures, 
and all executive and judicial officers, both of the United 
States and of the several states, shall be bound by oath or 
affirmation to support this Constitution/ 3 

This supremacy clause was much debated pending the 
adoption of the constitution, and the objections thereto 
called forth, in a number of ( The Federalist/ the following 
exposition and defence thereof, from the distinguished 
leader of the national party, Alexander Hamilton. ' But, 
it is said, the laws of the union are to be the supreme law 
of the land. What inference can be drawn from this, or 
what would they amount to if they were not to be su- 
preme ? It is evident they would amount to nothing. A 
law, by the very meaning of the term, includes suprem- 
acy. It is a rule which those to whom it is prescribed are 
bound to observe. This results from every political asso- 
ciation. 4 If individuals enter into a state of society, the 

1 Martin v. Hunter' Lessee, 1 Wheat. 326, per Justice Story. 

2 See 4 Wheat. 405-6, per Marshall, C. J. 

3 Const. U. S. Art. vi. 

4 This doctrine was admitted and applied in relation to the federal 
laws made pursuant to the Articles of Confederation. In Ware v. 
Hylton, 3. Dall. Kep. 199, 285, Judge Chase says : — ' It seems to me that 
treaties made by Congress, according to the Confederation, were supe- 
rior to the laws of the States, because the Confederation made them 



OF THE UNITED STATES. 227 

laws of that society must be the supreme regulator of their 
conduct. If a number of political societies enter into a 
larger political society, the laws which the latter may 
enact, pursuant to the powers entrusted to it by the con- 
stitution, must necessarily be supreme over those societies, 

and the individuals of whom they are composed. 1 

But it will not follow from this doctrine, that acts of the 
larger society, which are not pursuant to its constitutional 
power, but which are invasions of the residuary authori- 
ties of the smaller societies, will become the supreme law 
of the land. These will be merely acts of usurpation, and 
will deserve to be treated as such. Hence we perceive, 
that the clause which declares the supremacy of the laws 
of the union, only declares a truth, which flows immediately 
and necessarily from the institution of a federal govern- 
ment. It will not, I presume, have escaped observation, 
that it expressly confines this supremacy to laws made pur- 
suant to the constitution; which I mention merely as an 
instance of caution in the convention, since that limitation 
would have been to be understood, though it had not been 
expressed.' 2 

Mr. Madison, however, seems not to have regarded this « 144 
supremacy clause as merely declaratory of 'a truth, which 
flows immediately and necessarily from the institution 
-of a federal government/ He thought that, i without it, 
the constitution would have been evidently and radically 
defective. To be fully sensible of this/ he said ' we need 
only suppose for a moment, that the supremacy of the 
state constitutions had been left complete, by a saving 

obligatory in all the States. They were so declared by Congress, on the 
13th of April, 1787 ; were so declared by the Legislatures and Execu- 
tives of most of the States, and were so decided by the Judiciary of the 
General Government, and by the Judiciaries of some of the State 
Governments.' See also 'The Federalist,' No. 38, p. 172. 

1 This passage should be noticed, as showing that Hamilton did not 
belong to those 'political dreamers,' who, in the words of Chief Justice 
Marshall, were wild enough to think of breaking down the lines which 
separate the states, and of compounding the American people into one 

-common mass.' See above, \ 131. 

2 The Federalist, No. 33, p. 145. 



228 POLITICAL AND CONSTITUTIONAL LAW 

clause in their favor. In the first place/ he argued, i as 
these constitutions invest the state legislatures with abso- 
lute sovereignty, in all cases not excepted by the existing 
articles of confederation, all the authorities contained in 
the proposed constitution, so far as they exceed those 
enumerated in the confederation, would have been an- 
nulled, and the new congress would have been reduced to 
the same impotent condition with their predecessors. In 
the next place, as the constitutions of some of the states 
do not even expressly and fully recognize the existing 
powers of the confederacy, an express saving of the su- 
premacy of the former would, in such states, have brought 
into question every power contained in the proposed con- 
stitution. In the third place, as the constitutions of the 
states differ much from each other, it might happen that 
a treaty or national law, of great and equal importance to 
the states, would interfere with some and not with other 
constitutions, and would consequently be valid in some of 
the states, at the same time that it would have no effect in 
others.' 1 But without such saving of the supremacy of 
the state constitutions, we may safely assume, with Ham- 
ilton, that the supremacy of the federal constitution, and 
of the laws and treaties made in pursuance thereof, would 
have necessarily resulted from the mere institution of a 
federal government. 

The oath of fidelity clause, — the propriety of which 
was also questioned, not only in the convention, but pend- 
ing the adoption of the constitution, — Mr. Madison ex- 
plained as follows : 

1 It has been asked, why it was thought necessary, that 
the state magistracy should be bound to support the fed- 
eral constitution, and unnecessary, that a like oath should 
be imposed on the officers of the United States, in favor 
of the state constitutions ? Several reasons might be as- 
signed for the distinction. I content myself with one,, 
which is obvious and conclusive. The members of the 
federal government will have no agency in carrying the 
state constitutions into effect. The members and officers of 

1 The Federalist, No. 44, p. 211. 



OF THE UNITED STATES. « 229 

the state governments, on the contrary, will have an es- 
sential agency in giving effect to the federal constitution. 
The election of the president and senate will depend, in 
all cases, on the legislatures of the several states. And 
the election of the house of representatives will equally 
depend on the same authority in the first instance ; and 
will, probably, forever be conducted by the officers, and 
according to the laws, of the states/ 1 

The last clause of the eighth section of the first article \ 145. Ex- 
of the federal constitution, authorizes the federal legisla- tento ^ federal 
ture 'to make all laws which shall be necessary and proper, P owers * 
for carrying into execution the powers by that constitu- 
tion vested in the government of the United States, or in 
any department or officer thereof/ This clause also, pend- 
ing the adoption of the constitution, was the subject of 
much discussion ; and was considered by Hamilton in con- 
nection with the supremacy clause. ' It may be/ he said, 
4 affirmed with perfect confidence, that the constitutional 
operation of the intended government would be precisely 
the same, if these clauses were entirely obliterated, as if 
they were repeated in every article. They are only de- 
claratory of a truth, which would have resulted, by neces- 
sary and unavoidable implication, from the very act of 
•constituting a federal government, and vesting it with cer- 
tain specified powers What is a power, but the abili- 
ty or faculty of doing a thing ? What is the ability to do 
a thing, but the power of employing the means necessary to 
its execution ? What is a legislative power, but a power 
of making laws ? What are the means to execute a legis- 
lative power, but laws ? What is the power of laying 
and collecting taxes, but a legislative power, or a power of 
making laws, to lay and collect taxes? What are the 
proper means of executing such a power, but necessary 
and proper laws ? This simple train of inquiry furnishes 
us at once with a test of the true nature of the clause com- 
plained of. It conducts us to this palpable truth, that a 
power to lay and collect taxes, must be a power to pass 

1 The Federalist, No. 44, pp. 211, 212. 



230 ^POLITICAL AND CONSTITUTIONAL LAW 

all laws necessary and proper for the execution of that 
power : and what does the unfortunate and calumniated 
provision do, more than to declare the same truth : to wit,, 
that the national legislature, to whom the power of laying 
and collecting taxes had been previously given, might, in 
the execution of that power, pass all laws necessary and 
proper to carry it into effect ? I have applied these obser- 
vations thus particularly to the power of taxation; because- 
it is the most important of the authorities proposed to be 
conferred upon the union. But the same process will 
lead to the same result, in relation to all other powers de- 
clared in the constitution But it may be asked r 

who is to judge of the necessity and propriety of the laws to 
be passed for executing the powers of the union ? I an- 
swer, first, that this question arises as well and as fully 
upon the simple grant of those powers, as upon the declar- 
atory clause : and I answer in the second place, that the^ 
national government, like every other, must judge, in the 
first instance, of the proper exercise of its powers; and its 
constituents in the last. If the federal government should 
overpass the just bounds of its authority and make a 
tyrannical use of its powers, the people, whose creature- 
it is, must appeal to the standard they have formed and 
take such measures to redress the injury done to the con- 
stitution as the exigency may suggest and prudence justify* 
The propriety of a law, in a constitutional light, must al- 
ways be determined by the nature of the powers upon 
which it is founded. Suppose, by some forced construc- 
tion of its authority, (which indeed cannot easily be im- 
agined,) the federal legislature should attempt to vary the 
law of descent in any state; would it not be evident, that 
in making such an attempt, it had exceeded its jurisdic- 
tion, and infringed upon that of the state ? Suppose,, 
again, that upon the pretence of an interference with its- 
revenues, it should undertake to abrogate a land tax im- 
posed by the authority of a state ; would it not be equally 
evident, that this was an invasion of that concurrent jurist 
diction in respect to this species of tax, which the con- 



OF THE UNITED STATES. 231 

stitution plainly supposes to exist in the state govern- 
ments ? ' x 

But this, the most important, and at the same time, the \ 146. Final 
most delicate of all questions arising in our political sys- judgment up- 
tem, is still unanswered. It is unquestionably true, as we iggue g 
have seen, that the jurisdiction of the federal government, 
and of every department thereof, is limited to - certain 
enumerated objects, and leaves to the several states a residu- 
ary and inviolable sovereignty over all other objects. 2 
Suppose, then, a controversy relating to the boundary be- 
tween the two jurisdictions, state and federal. In what 
body or bodies resides the right of final decision ? Ac- 
cording to Hamilton, the people must decide; ''and take 
such measures as the exigency may suggest and prudence 
justify/ 3 But what people ? The people of the whole 
country ? They do not now, and never did, exist in the 
capacity of a political body. To say, as others have said, 
that the constituted court or tribunal which is ultimately to 
decide upon infractions of the federal constitution, is or 
ought to be, established under the general government, is 
simply to deny that <a residuary and inviolable sovereignty 
is left to the states ' over any one object of government, and 
to affirm that the general government, created by the 
states as political communities, is or ought to be superior 
to its creators, — is or ought to be an absolute government, 
possessed of the power to finally and exclusively judge of the 
extent of its powers, in all cases. It is useless to argue that 
this does not change the principle of the case; 4 that the 
decision is to be impartially made, according to the rules of 
the constitution, and that all the usual and most effectual 
precautions are to be taken to secure this impartiality. 
The government that possesses this power, whatever be 
the name by which it is called, and however bound by 
written constitutions, cannot be a government of limited 

1 The Federalist, No. 33, pp. 143, 144. 

2 The Federalist, No. 39, p. 178. 

3 See above, § 145. 
4 Seegl2, p. 9, ante. 



232 POLITICAL AND CONSTITUTIONAL LAW 

powers, since it has all the powers which it may adjudge to 
belong to itself. Such a government, whether founded in a 
written or an unwritten constitution, and whether limited 
by the terms of its constitution or not, is, in fact, if not in 
theory, an unlimited, imperial and irresponsible power. 1 

It is certainly true, that there ought to be a tribunal of 
last resort, for the decision of questions concerning the 
boundary between the two jurisdictions, state and federal, 
in order to prevent an appeal to the sword, and a dissolu- 
tion of the compact. 2 But it by no means follows that it 
should be a department of the federal government, or a 
branch of any state government. That it should be either, 
is in open violation of the federal principle, on which the 
union of the states is founded, and only on which can that 
union be preserved. In accordance with that principle, it 
should be a court of all the states, in their sovereign 
capacities, wherein the voice of each would be heard. Its 
purpose being exclusively judicial, and to settle questions 
of sovereignty alone, it should sit to simply pronounce its 
judgment. In order to avoid' the excitements and dangers 
of special elections or appointments for the purpose, and 
to secure the highest judicial ability, it might consist of the 
ex-chief justices of the states. The mere existence of such 
a court, could not but exert a powerful influence to prevent 
or restrain usurpations or infractions of the federal con- 
stitution, whether attempted by federal or by state authori- 
ties. Its decisions, although it should lack the power to 
enforce them, would be sovereign determinations upon 
questions of sovereign right, and would furnish at least a 
central thought, a beacon light for the people at large. 

Judged by the essential and fundamental principle of a 

x It seems that the framers of the federal constitution explicitly re- 
fused to confer on the government of the union the power in question. 
Before they agreed upon the present clause of supremacy, it' was pro- 
posed to vest in the general government a power ' to negative all laws, 
passed by the several states, contravening, in the opinion of the national 
legislature, the articles of union, or any treaties subsisting under the 
authority of the union;' and the vote upon this, by states, was three for, 
and seven against it. See Elliot's Debates, Vol. i, p. 207. 

2 The Federalist, No. 39, p. 178. 



OF THE UNITED STATES. 233 

confederacy of states, — that the law of their union must 
express their common consent, and (as expounded and con- 
strued) settle and preserve the boundary line between the 
internal sovereignty of each and the external sovereignty of 
all, 1 — the federal constitution must be considered as essen- 
tially and radically defective, in that it provides for no 
such tribunal for the determination of questions concern- 
ing political infractions of the organic law of the union, 
and for the proposal of amendments to that law. 2 

'It will not be denied, that power is of an encroaching $i46a. Ag- 
nature, and that it ought to be effectually restrained from gressive na- 
passing the limits assigned to it. . . . Will it be suffi- ture of le S is - 
cient to mark, with precision, the boundaries of these de- a lve P ower * 
partments [the legislative, judicial, and executive] in the 
constitution of the government, and to trust to these 
parchment barriers against the encroaching spirit of power ? 
This is the security which appears to have been principally 
relied on by the compilers of most of the American con- 
stitutions. But exjoerience assures us, that the efficacy of 
the provision has been greatly overrated; and that some 
more adequate defence is indispensably necessary for the 
more feeble, against the more powerful, members of the 
government. The legislative department is everywhere 
extending the sphere of its activity, and drawing all 
power into its impetuous vortex. 

' The founders of our republics have so much merit for 
the wisdom which they have displayed, that no task can 
be less pleasing than that of pointing out the errors into 
which they have fallen. A respect for truth, however, 
obliges us to remark, that they seem never for a moment 
to have turned their eyes from the danger to liberty, from 
the overgrown and all-grasping prerogative of an heredi- 
tary magistrate, supported and fortified by an hereditary 
branch of the legislative authority. They seem never to 
have recollected the danger from legislative usurpations, 

1 Ante, I 16. 

2 The power to formulate and propose amendments of the federal con- 
stitution, is of the utmost consequence. See \ 87a, p. 147, ante. 



234 POLITICAL AND CONSTITUTIONAL LAW 

which, by assembling all power in the same hands, must 
lead to the same tyranny as is threatened by executive, 
usurpations. ... In a representative republic, where 
the executive magistracy is carefully limited, both in the 
extent and the duration of its power; and where the leg- 
islative power is exercised by an assembly, which is in- 
spired by a supposed influence over the people, with an 
intrepid confidence in its own strength; which is suffi- 
ciently numerous to feel all the passions which actuate a. 
multitude ; yet not so numerous as to be incapable of pur- 
suing the objects of its passions, by means which reason 
prescribes ; it is against the enterprising ambition of this 
department, that the people ought to indulge all their jeal- 
ousy, and exhaust all their precautions/ 1 

< The representatives of the people, in a popular assembly,, 
seem sometimes to fancy, that they are the people themselves r 
and betray strong symptoms of impatience and disgust at 
the least sign of opposition from any other quarter ; as if 
the exercise of its rights, by either the executive or the- 
judiciary, were a breach of their privilege, and an outrage 
to their dignity. They often appear disposed to exert an 
imperious control over the other departments; and as they 
commonly have the people on their side, they always act 
with such momentum as to make it very difficult for the 
other members of the government to maintain the balance 
of the constitution/ 2 

' The several departments being perfectly co-ordinate by 
the terms of their common commission, neither of them, it 
is evident, can pretend to an exclusive or superior right of 
settling the boundaries between their respective powers :. 
and how are the encroachments of the stronger to be pre- 
vented, or the wrongs of the weaker to be redressed, with- 
out an appeal to the people themselves, who, as the grantors 
of the commission, can alone declare its true meaning, and 
enforce its observance ?' 3 

1 The Federalist, No. 48, pp. 228-9. Madison. The subject is fully 
discussed, and the dangers from the legislative power, shown by exam- 
ples in our own history, in the number referred to. 

2 Id. No. 71. Hamilton. 3 Id. No. 49, p. 233. 



OF THE UNITED STATES. 235 

The jurisdiction of the supreme court of the United $ 147. Cases 
States, does not extend to any question concerning the not within the, 
powers of the federal government, the powers of the gov- JU lcm pow " 
ernments of the states, or the powers of the several de- 
partments of either, unless the question arises in a case at 
law or a case in equity, brought before the court in pur- 
suance of the regular forms of judicial procedure ; and 
even then, the decision of that court can affect no one but 
a party to the suit ; a different decision maybe made in 
the very next case in which the same question is presented. 
1 There may be instances of usurped power, which the 
forms of the constitution could never draw within the con- 
trol of the judicial department. If, moreover, the decision 
of the judiciary be raised above the authority of the sov- 
ereign parties to the constitution, the decisions of the other 
departments, not carried by the forms of the constitution 
before the judiciary, must be equally authoritative and 
final as the decisions of this department. Again, there 
may be great and extraordinary cases, in which all the 
forms of the constitution may prove ineffectual against in- 
fractions dangerous to the essential rights of the parties to 
it: dangerous powers, not delegated, may not only be 
usurped and executed by the other departments, but the 
judicial department, also, may exercise or sanction danger- 
ous powers beyond the grant of the constitution ; and r 
consequently, the ultimate right of the parties to the con- 
stitution to judge whether the compact has been danger- 
ously violated, must extend to violations by one delegated 
authority as well as another; by the judiciary as well as 
by the executive or the legislature/ 1 

1 Madison's Keport of 1799 on the Virginia Eesolutions, called forth by 
the Alien and Sedition Laws, passed by congress in 1798. In this con- 
nection, see the Resolutions of the several states, Elliot's Debates, VoL 
iv, pp. 528 to 540. See also those of the New England or Hartford Con- 
vention, assembled in 1814 upon the call of Massachusetts, Niles' Reg. 
Vol vn, pp. 161-269 ; 306. So far as these are regarded merely as the 
acts of state governments, they cannot be admitted as possessing inherent 
authority, for reasons formerly given. Had they been acts of Conven- 
tions of the People, chosen for the purpose, still a constitutional major- 



236 POLITICAL AND CONSTITUTIONAL LAW 

\ 148. Limit 'The plan of the convention [that is, the constitution] 
of Powers. declares, that the power of congress, or, in other words, 
of the national legislature, shall extend to certain enumer- 
ated cases. This specification of particulars evidently ex- 
cludes all pretension to a general legislative authority; 
because an afiirmative grant of special powers would be 
absurd, as well as useless, if a general authority was in- 
tended. In like manner, the authority of the federal judi- 
catures is declared by the constitution to comprehend cer- 
tain cases particularly specified. The expression of those 
cases marks the precise limits, beyond which the federal 
courts cannot extend their jurisdiction ; because the ob- 
jects of their cognizance being enumerated, the specifica- 
tion would be nugatory, if it did not exclude all ideas of 
more extensive authority/ 1 The same train of reasoning 
of course applies with equal force to the federal executive. 
The federal government, therefore, in each and in all of 
its departments, is clearly a government of enumerated 
and limited powers. Now nothing can be more absurd, 
than in one breath to say, that it is a government of enu- 
merated and limited powers, and to affirm in the next, that 
it is, in each, in any, or in all of its departments, the final 
and exclusive judge of its powers. Yet some there are who 
boldly maintain this very contradiction ; — who therefore 
find their ' absurdity in theory, in practice a tyranny/ 

1 149. Pos- There may be cases of infractions of the organic law, 
sible usurpa- usurpations of dangerous powers, by all the departments 
iions. of the federal government combined : and yet the usurpers 

themselves are to be the exclusive and final judges of these 
infractions or usurpations ! The usurpers might always 
find some pretext or warrant, perhaps in the constitution 
itself, for the assumption of such powers as they might 
choose to exert. Thus they might reason : — ' Why de- 
clare that things shall not be done which there is no power 

ity of the states, three-fourths at least, should have concurred. They 
show the light, however, in which our system of governments was viewed 
at that early period, by some of the leading statesmen of the country. 
1 The Federalist, No. 83, pp. 381-382 : per Hamilton. 



OF THE UNITED STATES. 237 

to do ? Why, for instance, should it be said, that " con- 
gress shall make no law abridging the freedom of speech 
or of the press," if no power is given by which restrictions 
may be imposed ? The constitution ought not to be charged 
with the absurdity of providing against the abuse of an 
authority which was not given ; and the provision against 
restraining the liberty of the press, affords a clear impli- 
cation that a right to prescribe proper regulations concern- 
ing it was intended to be vested in the national govern- 
ment/ 1 It might be further urged, that one of the express 
objects of the constitution, was 'to promote the general wel- 
fare ; ' 2 that ' the general welfare ' imperatively demands 
some reasonable or ' necessary and proper ' regulation 
concerning the licentiousness of the press. In fact, it is 
already argued by the imperialists, that ( Freedom, not 
license, is secured; the fair use, not the libellous abuse, is 
protected/ 3 The same might be urged with equal force in 
relation to the provision that ' congress shall make no law 
respecting an establishment of religion, or prohibiting the 
free exercise thereof/ Does not l the general welfare ' 
require, that irreligion should be restrained by proper reg- 
ulations? And who shall decide between freedom and 
licentiousness, religion and irreligion ? The very usurpers 
who might find occasion to employ these arguments ! This 
cannot be true, so long as c the powers not delegated to 
the United States by the constitution, nor prohibited by it 
to the states, are reserved to the states respectively, or to 
to the people/ 4 

At the very foundation of our system, there must be g i^ j> e _ 
rights reserved by ' the people ' of each state respecting served sover- 
which the federal government can have no sort of juris- ei g nt y- 
diction. Such indeed are the rights of political existence, 
political sovereignty, and political domain, considered as 
rights internal and absolute, inherent and inalienable, and 

1 1 borrow from Alexander Hamilton. See his argument against the 
policy of Bills of Eights, in The Federalist, No. 84, p. 394. 

2 See Preamble to Const. U. S. 

3 Pomeroy's Const. Law, g 239. 

4 Const. U. S. Amend. Art. x. 



238 POLITICAL AND CONSTITUTIONAL LAW 

as such essential^to each people. But it does not follow, 
that the people of any one state, alone by themselves, as 
composing a party to the federal constitution, have a final 
•and exclusive jurisdiction concerning infractions of that 
organic law. This could never be admitted in a society 
of equals, where — whether the society be composed of in- 
dividuals or of states — each is entitled to a voice in rela- 
tion to questions immediately and equally affecting all. 
The judgment of one is of no higher authority than that 
of another. All are equals in right; and among equals in 
right, no one can claim exclusive jurisdiction in matters of 
common concern. The decision of a fair majority, — or of 
what may be called a naturally sufficient majority, whatever 
that majority may be, — must, in all cases, be final and 
conclusive upon all such questions. This majority, agree- 
ably to the federal constitution, should consist of three- 
fourths of the states — a majority at all times sufficient to 
change the organic law, to resume the powers of govern- 
ment, and remodel and revest them at will; either by the 
method pointed out in relation to amendments of the con- 
stitution ; by a convention of the states ; or by any other 
method which i to them shall seem most likely to effect 
their safety and happiness/ This is the conclusion at 
which we arrive, and which, if we adhere to the princi- 
ples of government founded in common consent, — if we 
desire to avoid dissensions and wars and maintain the 
union of the states, — will not be disputed. 

\ 151. Polit- "\\r e have now reviewed the general nature of our politi- 
aca par les. ca j gyg^^ an( j ^- ne different theories concerning the same, 
with especial reference to the principal question, whether 
our union is a union of states, or a union or people as 
one political state. We have referred to the records and 
dwelt at some length upon the authorities and points de- 
cisive of that question ; though this might have seemed en- 
tirely unnecessary, had it not been a fact that the question 
of late has assumed an air of paramount importance, while 
not a vestige of authority can be found for saying that our 



OF THE UNITED STATES. 239 

union now is, or ever was, a union of our American people 
as composing a single political state. 

Let us conclude this review with a few remarks con- 
cerning the political parties, which, from first to last, have 
appeared in the history of our country, and which, so long 
as they act in strict subordination to the fundamental prin- 
ciples of our constitutions, I believe to be equally essential 
to the permanence of our political system. I mean those 
two great parties, known originally as the Nationals and 
the Federals, — though called sometimes by different 
names, — which appeared in the general convention of the 
states that framed the federal constitution, 1 and which un- 
der one name or another, have ever since existed, as the 
champions of UNION on the one hand, and of LIBEETY 
on the other. 

One of the difficulties experienced in the general con- g 152 . Ori- 
vention, <a very important difficulty, arose from com- g m f these 
paring the extent of the country to be governed, with the parties. 
kind of government which it would be proper to establish 
in it/ 2 In regard to this, the convention appears to have 
been divided. The Nationals favored, at first, a consoli- 
dation of the states, a concentration of the sovereign pow- 
ers, in one great national government, independent of the 
states, and dependent only on the people of the country 
in a national and collective capacity. This scheme, how- 
ever, was but feebly supported in the outstart, and was, in 
the end, wholly abandoned, even by the Nationals them- 
selves. 'It was well known, that however the citizens of 
the United States might with pleasure submit to the 
legitimate restraints of a republican constitution, they 
would reject with indignation the fetters of despotism. 
What, then, was to be done? The idea of a confederate 
republic presented itself.' 3 But though the plan of ' a con- 
vention [compact] by which several states agree to be- 
come members of a larger one/ was finally determined 

1 See ante, \ 80, p. 101. 

2 See "Wilson's speech in the ratifying convention of Pennsylvania, 
• ante, \ 111. 

3 Id. See also 3 3 118 to 122, ante. 



240 POLITICAL AND CONSTITUTIONAL LAW 

upon, the Nationals continued to labor, and to watch with 
vigilance every opportunity, to give a national tone and 
character to the new constitution. Hence the provisions 
of that constitution, for a representation of the people in 
the federal legislature, and federal legislation directly 
affecting the people : which provisions, though resting on 
the basis of a confederation of the states in their sover- 
eign political capacities, partake somewhat of a national 
character, and have, in their more recent practical opera- 
tion, very nearly accomplished the conversion of the states 
into a single state ; which their opponents predicted would 
be their final effect, when first those provisions were in- 
troduced. 

These two principal parties, which divided the general 
convention, and also the ratifying conventions of the sev- 
eral states, have since been known by various names : the 
[Nationals even assuming, while the constitution was pend- 
ing before the people for adoption, the name of their orig- 
inal opponents; — Hamilton and Jay, their principal lead- 
ers, contributing to The Federalist, together with M adison, 
as exponents, defenders and supporters of the new federal 
system ; — and the Federals, with Jefferson at their head, 
being subsequently known, first as Eepublicans and then 
as Democrats. Thus it will sometimes happen, that a 
political party, for some cause or other, usually on account 
of some evil it has wrought, will find it expedient to adopt 
a new name, in order to secure the support of the conser- 
vative class; a kind of third party, peculiar to no country 
and as old as time, who generally hold the balance of 
power, and who, by rallying to the support of conserva- 
tive men, aim to avoid all kinds of extremes. 

5 153# ^ e _ The necessity of at least two principal parties, will ap- 
cessity of pear from considering the nature of our political, system: 
these parties, a system which, we may truly say, is founded in the na- 
grounded m ture of human society itself, in the natural relations of 
man to man, and the idea of securing to every individual 
the fullest enjoyment of his natural rights. To the very 
existence of human society, two things are primarily es- 



the nature of 
our system. 



OF THE UNITED STATES. 241 

sential : first, a diversity of individuals, each however pos- 
sessing, in and for himself, a reason, to know ; an under- 
standing, to judge; and a will, to do, what is right or what 
wrong ; in a word, all that is essential to individual self- 
government, all that makes man a morally responsible 
being, and all that gives him a separate and independent 
existence : secondly, a common principle of humanity, 
self-recognized in each as in one and in all the same, serv- 
ing as a bond of perpetual union, and impelling all to a har- 
monious co-operation in the pursuit of those aims which 
are common to all. Our political system being founded 
in the nature of human society, there arise, as of course, 
first, a diversity of states or commonwealths, each of which 
is sovereign, free and self-governed under its own consti- 
tution, by its own legislature, judiciary, and executive, in 
all that exclusively relates to itself; secondly, a political 
union or association of these states, founded in a general 
organic law, a constitution common to all alike, under the 
broad and comprehensive principles of which, while each 
state (just as each individual of each state) remains sover- 
eign and free in relation to its own internal and domestic 
concerns, a common and supreme legislature, judiciary, 
and executive, are called into being, with a view to the at- 
tainment of those ends which are of common and equal 
importance to all. 

Perhaps there is reason to hope that there is something „ 154 T 
of divine institution in this our system of things, and that equally neces- 
on this account, it cannot be doomed to flourish for a sary ideas. 
while and then disappear, as something merely of human 
invention. At all events, self.] government, on the one 
hand, and social government, on the other, — liberty, and 
union, both for individuals and for states, — are here the 
fundamental ideas. Hence the necessity of the two great 
parties, — the Nationals and the Federals of 1787, and the 
Eepublicans and Democrats of recent times; — the one to 
preserve the union of the states; and the other to preserve 
the states themselves, and so to prevent that union from 
wholly absorbing the states and becoming an imperial and 
absolute power. p 



242 POLITICAL AND CONSTITUTIONAL LAW 

It may be asked, why the necessity of parties to do all 
this ? can Americans ever be blind to the equal import- 
ance of both ? I answer, it is natural for each individual 
to attach himself to some one idea, and pursue it to the ex- 
clusion of all others. This, in fact, is the secret of success, 
no matter in what line, vocation or calling. ' An extinc- 
tion of parties necessarily implies, either a universal alarm 
for the public safety, or an absolute extinction of liberty.' 1 
It may happen at one time, that danger is threatened to 
the union of the states; at another, to the sovereign 

RIGHTS OF THE SEVERAL BODIES OF ELECTORS COMPOSING THE 
SEVERAL STATES. The PRESERVATION OF THE UNION, and the 

security of these bodies as being the states of which the 
union is formed, must, as is obvious, be always equally 
essential to our political system. In the language of the 
Supreme Court of the United States, ' The preservation of 
the States and the maintenance of their governments, are 
as much within the design and care of the Constitution, as 
the preservation of the Union and the maintenance of the 
national government; and the Constitution, in all its pro- 
visions, looks to an indestructible union composed of in- 
destructible states/ 2 If either the one or the other shall 
be endangered, the people will naturally take the alarm, 
and turn the scales against the party that threatens the 
danger. This indeed is our only security — the only hope 
that Americans have for the perpetuity of their institu- 
tions. 3 



(3 h a) OF THE KELATIONS OF THE PEOPLE AS CITIZENS. 

2T5 Wh- 1 Citizen is a word of various meanings. It is often em- 
is meant bv pl°7 e d in the plural as equivalent to the word people; 
citizen. and this, in turn, as synonymous with electors : though 

probably at least three-fourths of our people, citizens 

1 The Federalist, No. 50, p. 238. 

2 Texas v. White, 7 Wall. 721. 

3 See ante, \ 121. 



OF THE UNITED STATES. 243 

of the states and of the United States, are wholly ex- 
eluded from the rights and privileges of electors. All 
these terms are found in the federal constitution. But 
that constitution is not only silent concerning what char- 
acter of persons is intended by either, but confers no 
power upon any government or any branch of any gov- 
ernment to fix or define their duties or rights as such. 
The true meaning of each, however, is at once discovered, 
if we consider the different relations of a person to our 
political system. These relations are, first, his relation to 
a, particular state and to the government of that state ; 
secondly, his relation to the United States and to the fed- 
eral government. In either or both of these relations, he 
may be an alien ) but if not an alien, then in relation to 
his own particular state, he is either a member of the civil 
community, that is a citizen merely, or else a member not 
only of the civil but also of the political state, an elector ; 
and in either case, in his character of citizen, is subject to, 
and entitled to the protection of, the laws of that state - } so 
long at least as he resides therein : in relation to the 
United States, he is subject to, and entitled to the protec- 
tion of, the federal laws, and is at the same time, a mem- 
ber of the civil community of each and every of the 
states ; in other words, he is l a citizen of the United 
States ;' that is, one who is c entitled to all the privileges 
and immunities of a citizen in the several states/ and is 
subject to the laws and entitled to the protection of the 
United States. 

There are, therefore, in our system, three sorts or kinds \ 156. Three 
-of communities or states ; first,, the several bodies of electors, kinds of 
which (as we have seen) 1 compose the several states, in states - 
their character of several, sovereign, and independent 
political communities (however united as such by the fed- 
eral constitution), and which are alone invested with polit- 
ical rights and charged with political duties, — being 'the 
people ' who ordained and established our constitutions ; 
secondly, the several bodies of citizens, which compose the 

1 Ante, \ 92, et seq. 



244 POLITICAL AND CONSTITUTIONAL LAW 

several states in their character of separate civil societies,, 
each of which bodies is immediately subject to the gov- 
ernment and entitled to the protection of the particular 
state to which it belongs, but has no voice or share in the 
government, state or federal ; thirdly, the common body of 
citizens of the United States, — that is to say, ' the citizens 
of each state ' as ' entitled to all privileges and immunities 
of citizens in the several states f x these forming the civil 
community of the United States, being subject to the 
federal government and entitled to its protection, but pos- 
sessing no sort of political power, no voice in the govern- 
ment of a state or of the United States, and no political 
duties to perform nor political rights to enjoy. 

A citizen, then, simply as such, whether of a state or of 
the United States, is one who is merely a member of the 
civil community, and who, in that capacity, though subject 
alike to the government of his state and to the govern- 
ment of the United States, and therefore entitled to the 
protection of both, within their respective spheres, is en- 
titled to none of the rights, and charged with none of the 
duties, pertaining to an elector or member of any political 
state. 

\ 157. Nat- Prior to the ratification of the present constitution of 
"uralization. the United States, each of the states possessed and exer- 
cised the right of conferring upon whomsoever it pleased, 
the character and rights of citizenship; and the dissim- 
ilarity of the different systems of naturalization that thence 
grew up in the different states, laid the foundations of 
many intricate and delicate questions. 2 By virtue of this 
right, and of a provision contained in the articles of con- 
federation, any one state could force upon the others, with 
the full enjoyment of every immunity and privilege of a 
citizen of the United States, any alien or class of aliens on 
whom it might choose to confer the rights of members of 
its own society; however repugnant his or their admission 
might be to the internal polity, convenience or wishes of 

1 Const. U. S. Art. rv. \ 2. 

2 The Federalist, No. 42. 



OF THE UNITED STATES. 245 

the others. To remedy the evil and inconvenience of 
which, when the new constitution was framed and adopted, 
the general supervision of the subject, the power 'to es- 
tablish a uniform rule of naturalization/ throughout the 
several states, was confided to the federal legislature. 

The power of congress ' to establish a uniform rule of $ 158. Pow- 
naturalization/ is, as such, an exclusive power. 1 It is not f r of natura l- 
however so all-comprehensive as to wholly exhaust the lza 10n ' 
power of the people in relation to this subject. Any of 
the states may now, as before the adoption of the present 
constitution of the United States, confer upon aliens many 
if not all of the rights peculiar to its citizens as such. In 
fact, there are few of the rights or privileges of a member 
of the civil community, which are not secured, by the con- 
stitutions or statute laws of the several states, to alien 
friends, so long as their respective governments remain at 
peace with our own. Nor is this power at all concerned 
with the regulation of the rights and privileges of electors. 
Any one state, in the exercise of its own discretion, may 
confer the rights and privileges of electors upon any and 
•all men alike, whether citizens or aliens ; or may at pleas- 
ure exclude, from all participation in its sovereign resolu- 
tions, such as it may deem incompetent thereto, whether 
■citizens of the state or of the United States. 2 But it can 
make no one a citizen or an elector of another state, or a 
citizen of the United States, by virtue of any mere act or 
volition of its own. 

The naturalization power of congress is very precisely o jgg 
limited by the terms of the grant. The idea was, that the 
rule, as to naturalization, whatever it might be, should be 
uniform throughout the states; inasmuch as 'the citizens 
of each state were entitled to all privileges and immunities 
of citizens in the several states/ 3 The word naturalization 

1 Story on Const. § 1099 ; 1 Kent's Com. 423-5 ; 2 Wheat. 259. 

2 This is clearly an essential of its internal sovereignty, which from its 
nature cannot be ceded or aliened, or subjected to external control, with- 
out being wholly annihilated, or in constant danger of annihilation. 

3 See The Federalist, No. 42, pp. 197-198. 



246 POLITICAL AND CONSTITUTIONAL LAW 

unquestionably refers to aliens, that is, to foreign-born 
subjects. It therefore appears that the only power which 
congress has concerning citizenship, is confined to the re- 
moval of the disabilities of foreign birth. 1 The power to 
naturalize an alien, is the power to confer upon him the 
character of a citizen, with the rights and privileges inci- 
dent thereto. The power to enact ' a uniform rule of natu- 
ralization/ is another thing. The power to define the 
character, and to determine the rights and privileges of 
citizens, is a power of a still different nature, and the ex- 
ercise of which is confided neither to congress nor to any 
department of the federal government. Congress can 
make no law establishing any criterion of citizenship, or 
prescribing the rights or privileges that a man shall enjoy 
in virtue of that character. Congress can only provide 
l a uniform rule' in virtue of which the subjects of foreign 
states may come to be invested with the character and rights 
of citizenship, as determined by the laws of the respective- 
states. 

\ 160. Char- It ought to be particularly noticed, that the power to 
acter of the con j er the character and capacity, or the rights and privi- 
power. leges of citizenship, is nowhere given to congress: the 

power l to establish a uniform rule of naturalization/ under 
which rule the character and rights of citizenship may be 
conferred by the courts, is another and a different power. 
The language of the constitution is, ' to establish an uni- 
form rule of naturalization and uniform laws on the sub- 
ject of bankruptcies throughout the United States/ The 
power is therefore completely exhausted when once that 
uniform rule, in the one case, and those uniform laws, in the 
other, have been established. If congress can, in pursu- 
ance of this grant of authority, declare a certain descrip- 
tion or class of persons citizens of the United States, in- 
vested with all privileges and immunities of citizens in the 
several states, by a mere declaratory act, and without es- 

1 Per Justice Curtis, 19 How. U. S. R. 393, citing The Federalist, No. 
42; 12 "Wheat. 259, 269; 3 Wash. 313, 322; 12 Wheat, 277 ; 3 Story on 
Const. 1-3 ; Rawle on Const. 84-88 . 1 Tucker's Blackst. App. 255, 259. 



OF THE UNITED STATES. 247 

tablishing a uniform rule of naturalization in accordance 
with which all aliens alike may be admitted to citizen- 
ship, — as it has in one instance at least assumed to do; 1 — 
it also can, and with equal propriety, declare a certain 
description or class of persons bankrupts, by a mere de- 
claratory act, and without establishing uniform laws on the 
subject of bankruptcies. The power is one and the same 
in nature and character, whether applied to the subject of 
naturalization, or to the subject of bankruptcies : that is to 
say, it is a legislative, and not a judicial or executive power. 
And if, by a mere declaratory act, a particular class may 
be declared citizens, another class may be declared aliens. 
So, too, any particular person may be declared a citizen, 
or declared an alien, at the pleasure of the federal legisla- 
ture. If, moreover, congress may, by a bill of rights, or 
by any declaratory act, proceed to determine and declare 
the rights and privileges of citizens, it may also fix the 
character and status of aliens. It may, in fine, control the 
right of suffrage, and so dispose of the paramount sover- 
eignty, and the inherent and inalienable prerogatives of 
the sovereign, to whomsoever it pleases, and in any way 
agreeable to its humor and caprice. The power is one of 
the highest sovereignty, and no limit can be set to the will 
of that body in which it is reposed. Congress is certainly 
not that body. It is therefore not for congress to say or 
declare, who are citizens, or who are aliens ; or what are the 
rights or privileges of either. 

By one of the original articles of confederation, it was » xei. Cit- 
provided that, 'The better to secure and perpetuate mu- izens of the 
tual friendship and intercourse among the people of the United States 
different states, in this union, the free inhabitants of each 
of these states, paupers, vagabonds, and fugitives from 
justice excepted, shall be entitled to all privileges and im- 

1 Act of 10th February, 1855, \\ 1, 2 ; 10 Stat. 604 ; Bright. Laws of 
TJ. S. 132. This Act was supposed to enable foreign-born children of 
United States citizens to inherit the estates of their parents, in this 
country. I imagine that the laws of inheritance, in the several states, 
were in no way affected by it. 



248 POLITICAL AND CONSTITUTIONAL LAW 

munities of free citizens in the several states; and the 
people of each state shall have free ingress and regress 
to and from any state, and shall enjoy therein all the priv- 
ileges of trade and commerce, subject to the same duties, 
impositions, and restrictions as the inhabitants thereof re- 
spectively, provided that such restrictions shall not extend 
so far as to prevent the removal of property imported into 
any state, to any other state of which the owner is an in- 
habitant/ 1 The substance of this was afterward copied 
into the present constitution of the union; which, as we 
have also seen, provides that ' The citizens of each state 
shall be entitled to all privileges and immunities of citi- 
zens in the several states/ 2 Hence has arisen what is 
termed c citizenship of the United States / which, however, 
signifies nothing but the right of a citizen of any one state 
to be deemed a member of the civil community of any 
other state into which he shall actually remove. For as 
to subjection to the federal constitution and to the laws 
made in pursuance thereof, and the right of protection re- 
sulting therefrom, these would' have followed as of course, 
independently of any such provision. A citizen of the 
United States, is therefore one, who, being a citizen of 
some particular state, is, by virtue of this clause of the 
federal constitution, ' entitled to all privileges and immu- 
nities of a citizen in the several states/ Without being or 
becoming a citizen of some particular state, no one, as is 
obvious, can reap the benefits of this provision ; or, in 
other words, be entitled to the privileges and immunities 
of a citizen in the several states — i. e. 7 of a citizen of the 
United States. 

5 16 2. Orio-- It has been said, that by the articles of confederation, 

in of U. S. ' there is no status of United States citizenship created or 

citizenship. recognized; we have free inhabitants and citizens .of the 

resrjective states, but no citizen of the United States/ 3 

But that is a great mistake. If it be true, the members 

1 Art. Conf. iv. 

2 Const. U. S. Art. 4, g 2. 

3 Pomeroy's Const. Law, \ 67. 



OF THE UNITED STATES. 249 

of the first three or four congresses were ineligible to 
their seats. For, by the constitution, no one can be a 
member of the house of representatives who has not 'been 
seven years a citizen of the United States / and no one can 
be a senator who has not ' been nine years a citizen of the 
United States/ 1 These provisions, however, were not re- 
garded in the cases of the first negro congressmen, who 
became citizens by the fourteenth amendment. 2 It was by 
the constitution required that the President should be l a 
natural-born citizen, or a citizen of the United States at 
the time of the adoption of this constitution/ 3 Thus the 
phrase, 'citizen of the United States/ is employed three 
times in the federal constitution, as a qualification for 
office under it, and is found no oftener and in no other con- 
nection, except in the recent amendments. In fact, citi- 
zenship of the United States was originally established 
by the fourth of the articles of confederation ; substantially 
condensed into the second section of the fourth article of 
the present constitution, as stated above ; and the i privi- 
leges and immunities of citizens in the several states ' to 
which it referred, were, originally, and have ever been, 
precisely the same as now. As we have often remarked, 
no new society or community, civil or political, was estab- 
lished, recognized, or authorized, by the new constitution. 

The expression in the federal constitution, 'all privi- 
leges and immunities of citizens in the several states/ has vile 
always been construed to mean, such rights and privileges immunities'of 
as are in their nature fundamental, such as belong of right II. S. citizen- 
to the citizens of all free governments, such as have at all Up- 
times been enjoyed by the citizens of the several states 
from the time of their becoming free, sovereign and inde- 
pendent ; 4 and has been held to be applicable only to natu- 

1 Const. U. S. Art. x, §§ 1, 2. 

2 1 take the amendment to be a recognition of the law as laid down 
in the case of Dred Scott, in 19 How. U. S. Rep. For if negroes were 
citizens of the United States before the amendment, the amendment it- 
.self'was without purpose or eflect. 

3 Art. ii, \ 1. 

4 4 Wash. C. C. R. 880, 381. 



3 163. <Pri- 



250 POLITICAL AND CONSTITUTIONAL LAW 

ral born citizens, and aliens duly naturalized under the 
acts of congress, and to mean that if they remove from 
one state to another, they shall be entitled to such rights, 
and privileges as persons of the same description are en- 
titled to in the state to which such removal is made, and 
to no other rights or privileges. 1 It cannot therefore 
escape attention, that citizenship of the United States, — i. 
e. the right of a citizen of a state to the ' privileges and 
immunities ' of a citizen in the several states, or as prac- 
tically and legally understood, the right of a citizen of any 
one state to the privileges and immunities of a citizen of 
any other state into which he shall actually remove, — is. 
merely an appendage or addition to the citizenship of each 
particular state. The latter is the original, independent 
and substantial character, upon which the former is en- 
grafted. The former cannot exist independently of, can- 
not precede, but can only follow, attach to and rest upon r 
the latter. 

Some have supposed, that one of the rights, c privileges 
or immunities ' of a citizen of the United States, is that of 
voting at public elections. Nothing can be further from 
the truth. It is only by virtue of provisions contained in 
the constitution of each particular state, that a citizen of 
the state or of the United States can ever be a member of 
its political community, or ever be invested with any po- 
litical rights. JSTor is it in the character, name or capacity 
of a citizen of the United States, that any political rights 
or powers are ever enjoyed; but only in the character or 
capacity of an elector, that is (as we have seen) of a mem- 
ber of the political body or state; which character or ca- 
pacity is never conferred upon any but one who has first 
been admitted a citizen of the state wherein he resides. 2 

1 2 Kent's Com. 71. See 19 How. U. S. R. 405. 

2 1 have elsewhere shown the baselessness of the imperial theory. In 
this connection, however, it may not be improper to notice the admis- 
sions of its ablest exponent, the learned ' professor of political science 
in the University of New York.' Speaking of the federal constitution, 
he says: — 'It nowhere attempts to define what persons may exercise the 
right of suffrage, nor does it confer upon the general government any 
such power. In the only instance where provision is made for a popular 



merits. 



OP THE UNITED STATES. 251 

What, then, is the meaning or effect of the fifteenth \ 164. Trie- 
amendment to the federal constitution ? — i The right of xivth and. 
citizens of the United States to vote, shall not be denied or ^^ amend - 
abridged by the United States, or by any State, on account 
of race, color, or previous condition of servitude/ This is 
generally understood to mean, that citizens of the United 
States shall not be denied the right to vote, or that the 
right to vote shall not be denied to citizens of the United 
States, nor shall the right be abridged, by the United 
States or by any state, on account of race, color, etc. 

The amendment unquestionably presupposes, as the 
basis and possibility of its obligation, that a right or power 
somewhere exists, other than that of any state, by which 
the right of suffrage, the essential sovereignty of i the peo- 
ple' of a state, may be controlled without their consent. 

election, the states are left to designate the individuals who may unite 
in electing. This fad is a complete answer to the somewhat common 
notion that United States citizenship implies the right of voting. Noth- 
ing can be further from the truth. Not a vote is cast, from one end of 
the country to the other, by any person in virtue merely of his being a 
citizen of the United States. The constitution recognizes the status of 
citizenship, and provides for admitting foreigners to that condition; 
but it does not create any class of voters. What the several states may 
do in this respect, is a matter entirely for their own consideration. . . . 
A state may deny to some citizens the right of suffrage entirely, as most 
do to the free negro, and all do to women and minors; or may deny it 
to persons of foreign birth for a certain period after naturalization, as 
does ^Tew York. Others still may confer the privilege upon persons 
who are not citizens of the United States, as do a few of the Western 
states. It is plain, therefore, that mere citizenship of the United States 
does not involve the right of suffrage. It is also plain that the United 
States have no power or authority to interfere with the discretion of the: 
states in determining what class of persons possess the " qualifications "' 
for electors. Pomeroy's Constitutional Law, \\ 207, 209. The propo- 
sitions which I have given in italics, are of themselves a complete 
refutation of the imperial theory — that the paramount sovereignty, the 
supreme political power, resides in. the people of the United States as- 
composing a single community, and not as the several bodies of electors- 
composing the several states. It is certainly strange that a theory so 
utterly baseless, and at the same time so destructive of the states which 
are the pillars of the union, and by consequence destructive of the' 
union itself, should have ever been conceived as something in which 
our people should be schooled. 



252 POLITICAL AND CONSTITUTIONAL LAW 

In this, the amendment is simply subversive of the sover- 
eignty of ' the people/ which has always existed, and could 
only exist in a union of republican states, as the supreme 
and uncontrollable right of each body of electors to say 
who should or should not be admitted to participation in 
their sovereign resolutions. ISTo matter what view is 
taken of the amendment, the all-important objection that 
it takes from 'the people ' of each state the peculiar essen- 
tial of their internal right of self-government, must remain 
an unanswerable one. In addition to this, the meaning 
(perhaps the conversion of the states into a single state) is 
hidden under a very unusual and ambiguous form of ex- 
pression — ' the right of citizens of the United States to vote/ 
In this connection, it is peculiarly important to recollect, 
who were ' citizens of the United States/ and in whom 
'the right to vote' was vested, prior to this amendment. 

165 # There are in our system, and have ever been, as we have 

formerly seen, three sorts or kinds of communities or states: 

first, THE SEVERAL BODIES OF ELECTORS, which are THE SEV- 
ERAL states themselves, considered as several, sovereign, 
and independent political communities, and which (each as 
' the people ' of a state, invested with the character, capa- 
cities and qualifications of electors or voters by virtue of 
their own organic law, and acting as a sovereign body or 
state) originally and severally formed our several state 
constitutions, and separately and severally 'assented to, 
ratified/ and so ' ordained and established * our federal con- 
stitution : secondly, the several bodies of citizens, which 
are the several states as separate civil communities, each 
of which bodies is immediately subject to the government 
and entitled to the protection of the political state to which 
it belongs, but has no voice or share in the government, 
state or federal : thirdly, the whole body of citizens of 
the United States, this body being the civil community 
of the United States, made up of 'the citizens of each 
state' as 'entitled to all privileges and immunities of citi- 
zens in the several states/ and being subject to the federal 
government, and entitled to its protection, within the 



OF THE UNITED STATES. 253 

sphere of its constitutional action, but possessing no sort 
of political power, no voice in the government of a state 
or of the United States, and having no political duties to 
perform, and no political rights to enjoy. By the four- 
teenth amendment, 'All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, are 
citizens of the United States/ c All persons,' men, women, 
and children, of all races, colors, sexes, and conditions. 
Now, no one ever imagined that these had a right Ho vote/ 
Yet the new amendment says, 'the right of citizens of the 
United States to vote, shall not be denied, or abridged/ etc. 
Bead it as we will, one of two grounds must be taken ; 
either that the amendment confers a wholly new right, a 
'right to vote/ upon 'citizens of the United States/ as 
such; — in which case, any and every citizen of the United 
States, of whatever color or race, and whether male or 
female, of age or non-age, tax-payer, pauper, or convict- 
felon, is newly clothed with a 'right to vote/ which 'shall 
not be denied or abridged on account of race, color, or 
previous condition of servitude, — or the negative ground 
must be taken, that the amendment confers no right to 
vote; that it merely prohibits the United States and every 
of the states, from denying or abridging that right to vote 
which was previously vested in each body of electors by 
their state constitution, ' on account of race, color/ etc. 

If by any construction or interpretation, — it matters not a jq^ 
what it may be, — the effect of this amendment is to confer 
a right upon ' citizens of the United States to vote/ a right 
which previously did not exist, such right ' to vote ' is a 
wholly new right : it is ' the right of all persons born or 
naturalized in the United States, and subject to the juris- 
diction thereof, to vote ; ' not the right to vote which was 
previously vested by each state constitution in the electors 
of the state j and as this new right is derived from the con- 
stitution of the United States, and not limited, qualified, 
or restricted thereby, it follows as of course, that as the 
common, equal and universal right of the new body of 
electors, composed of 'all persons born or naturalized 



254 POLITICAL AND CONSTITUTIONAL LAW 

within the jurisdiction of the United States/ it cannot be 
limited, denied or abridged, unless in view and pursuance 
of the new amendment by which created; ' anything in 
the constitution or laws of any state to the contrary not- 
withstanding/ 

It was formerly observed, that by many if not all of the 
state constitutions, citizens of the United States, being 
otherwise qualified as required by those constitutions, are ad- 
mitted to the body of electors in each state ; not indeed by 
federal but by state authority ; and not as a matter of duty 
to admit or of right to be admitted, but of grace merely ; 
and not in the character or capacity of citizens of the 
United States, but in the character and capacity of persons 
possessing the requisite qualifications. 1 But if the amendment 
refers to these, it does not invest any man with any new 
right -, it merely prohibits the states and the United States 
from denying or abridging their vested right by future re- 
strictions ' on account of race, color/ etc. 

The question, be it observed, is not of i negro-voting/ 
but of voting by authority of the federal instead of the 
state constitution, of holding to the union of the states 
as such, or of merging them all into A single state (as will 
be presently seen). 

16 7 But why, it may be asked, prohibit the United States 

from denying or abridging the right on account of race, 
color, etc. .? Not a shadow of power had ever passed to 
them, or to any department of the federal government, to 
deny, abridge, or in any way affect, the right to vote. The 
implication, if any be allowable as effecting an alienation 
of the essential and inalienable sovereignty of 'the people ' 
of a state, is, that the United States now may, by further and 
new provisions, deny or abridge the right on any other ac- 
count : if by their representatives, then that congress may 
deny or abridge the right on any other account ; as for in- 
stance, on account of previous connection with a particular 
political party or movement. The implication is the same 
in relation to any state. Not that any state may now deny 

1 See ante, \ 163 in note. 



OF THE UNITED STATES. 255 

or abridge the right by virtue of provisions of its constitu- 
tion previously existing. For if any new right to vote re- 
sults (which is the only thing in question), it is given to 
.all such l citizens of the United States ' as did not and could 
not (as well as to those who could and did) possess a right 
to vote by that constitution ; a new political community 
is created and established, whose right to wield the para- 
mount sovereignty is everywhere the same, determined 
and prescribed, not as heretofore the right of 'the people ' 
of the state has been, but by the general constitution of all : 
and the right of this new body cannot be limited by refer- 
ence to that which did not create it, except by new pro- 
visions in view and pursuance of the implied permission, 
-since only thus can the right be limited by a different 
authority extraneous to the grant. Perhaps it is asked, 
what would be the difference between new amendments of 
i:he state constitutions in view and pursuance of the im- 
plied permission to deny or abridge the right on any other 
account, and existing provisions of those constitutions 
affecting the right ? The difference would be great; that 
while the former would, the latter could not, designedly affect 
the right : the existing provisions, if construed to affect 
the new right, would be construed to affect an object, and 
to effect a purpose, which they never could have contem- 
plated, and to which they originally were and yet are 
-strangers. Such a construction would negative the first 
principles of construction. The decision of this point, 
however, be the decision what it may, cannot affect the 
position, that if any right to vote results from the new 
amendment, which was not previously vested by the state 
constitutions, a new political community is created. 
This deserves our special attention. 

Prior to this amendment, ' the right to vote/ including « 16g TJiQ 
the right to be elected to public office, was exclusively United States 
vested in the several bodies of electors composing the changed into 
several states and being the only political communities or one single 
.states — the members of each body of electors deriving state - 
their rights as such from their own peculiar law, and not 



256 POLITICAL AND CONSTITUTIONAL LAW 

from any authority extraneous to their own constitution 
or sovereign will ; and whatever of public or political 
authority, state or federal, had ever been exercised, from 
the beginning of the Ee volution to the ratification of the 
amendment,, had been exclusively derived' from (as dele- 
gated by) these several bodies of electors ; each body act- 
ing as a sovereign and independent political community 
or state. (This is a truth of our history, which, as we have 
formerly had occasion to show, challenges all attempts at 
contradiction or qualification.) Of these, there were orig- 
inally thirteen ; and prior to the amendment, thirty-seven. 
The Union was a union of states, as its d name imports,, 
and not a United State. 

Eut assuming that the power of amendment is unlimited 
(for this is implied by every amendment affecting the para- 
mount sovereignty), and that a c right to vote ' results from 
the amendment and is vested in l citizens of the United 
States ' by federal authority, all is changed : we have but 
one political state ; our union is a union of ' citizens of 
the United States ' as co-equal members of a single con- 
federacy of individuals; and the States, and l The United 
States/ in all but the forms of administering government,, 
are things of the past. The forms of state and federal gov- 
ernment, are still preserved ; but these, though essential to 
the very existence of the several bodies of electors, or po- 
litical states, in the old system, are in no degree essential 
to the new political state into which those bodies now are 
merged, and cannot long survive the dissolution of the 
sovereignties in which they were founded. In the old sys- 
tem, 'the right to vote' was as manifold as the bodies of 
electors composing the states. Now it is one, to be en- 
joyed by the whole body of * citizens of the United States/ 
in common and without distinction. Speak of the election 
by c the people ' of Massachusetts, New York, or any other 
state; there is no longer any such 'people;' we have only 
the one grand body of electors, i the citizens of the United 
States/ and these electors, as happening to be here or 
there, in this state or that, now perform the sovereign 
office of such as were formerly the electors composing the 



OF THE UNITED STATES. 257 

political state, but which political state no longer exists, 
unless as a mere election division. 

Not only the constitutions of the states, but the states 
themselves, are abolished. Is this denied ? Then the 
fact that the fifteenth amendment confers upon any a right 
to vote, is also denied. Either we vote, as heretofore, by 
state authority, that is, by authority of the sovereign 
will of the people or each state, expressed in their state 
constitution ; or else we vote by federal authority, that 
is, by authority of the sovereign will of the people of 
the United States as one people and one state, expressed 
in the new amendment. There is no third ground. A 
man cannot vote by virtue of two sovereign wills in any 
one state : however it may have been assumed by officers 
of state elections, that such a thing could be done. 1 Sup- 
pose, then, we vote by federal authority. ]STow the 
authority by which we vote, is naturally and necessarily, 
the paramount sovereignty. The paramount sovereignty, 
then, which formerly resided in ' the people ' of each state, 
is now transferred to 'the people ' of the United States, 
to the c citizens of the United States/ which, it is assumed, 
have a right to vote by force of the fifteenth amendment, 
and which, by the fourteenth, are declared to be, ' all per- 
sons born or naturalized in the United States and subject 
to the jurisdiction thereof/ The sovereignty is no longer 
manifold, as was the sovereignty of the people of the 
states ; it is one ; and if there is only one sovereignty, there 
is, of course, only one state ; and the citizens thereof are 
co-equal members, civilly andpolitically, of one and the 
same community. There are no United States, because 
there are no states. Are the constitutions of the several 
states, or those which formerly were known as such, su- 
preme laws within their spheres ? How and by what 

1 1 have no doubt that the officers of elections held under the laws of 
a state, who admit a vote that the state constitution excludes, or a vote 
that is illegal by the laws of the state, are liable to conviction of, and 
punishment for, the offence, by the courts of the state. Nothing can be 
clearer than the proposition, that the right to vote cannot be exercised 
by virtue of two sovereign authorities. 

Q 



258 POLITICAL AND CONSTITUTIONAL LAW 

authority are they now of any obligatory force ? By 
authority of the one indivisible sovereignty of the one 
indivisible political state- not by authority of 'the peo- 
ple ' of each state j and because they are adopted, in so 

EAR AS PRESERVED, BY THAT ONE SOVEREINTY ; not because 

they severally express the sovereign wills of the people 
of the states. 

2 159 The change produced by the new amendment, if any 

whatever is effected by it, is radical and complete. It is 
neither more nor less than an absolute transfer of the es- 
sential sovereignty of each body of electors, an alienation 
of the inalienable right of self-government inherent in ' the 
people ' of each state, to the new political (formerly the civil) 
community or state, composed of ' citizens of the United 
states;' that is, as we have seen, of 'all persons born or 
naturalized in the United States and subject to the juris- 
diction thereof;' and this accomplishes the total destruc- 
tion of the states as separate and independent political 
communities, and rears upon their ruins — 'the empire.' 
Upon any construction of the new amendment, which re- 
sults in 'the right of citizens of the United States to vote/ 
there is no possible escape from the conclusion reached. 
For if the right is given to any by virtue of the amend- 
ment, it is given to all; and if any limitation, not amount- 
ing to an absolute denial of the right, is or may be estab- 
lished, such limitation cannot amount to a total exclusion, 
and those not excluded will constitute the new political 
state. And thus, if any effect is given to the new amend- 
ment by way of establishing a right to vote which did not 
previously exist, it must be admitted that it creates a 
wholly new political community; just as the fourteenth had, 
to the extent not only of four millions of population but 
of the whole population, created a new civil community, or 
new community of citizens as such. This I believe has 
been overlooked. Behold, then (in the work and the 
triumph of a political party), the destruction and ' recon- 
struction' of the states ! the establishment of 'the empire' ! 

e ] 
thus wrought ! ! ! 



Or THE UNITED STATES. 259 

The conclusion reached can only be avoided by assum- \ 170. 
ing the negative ground; that the new amendment does 
not confer ' the right to vote ' upon any who did not pre- 
viously possess it in virtue of some state constitution; but 
simply prohibits the denial or abridgment of such right as 
was previously vested, i on account of race, color, or previous 
condition of servitude/ Thus, in states which had pre- 
viously conferred the right without regard to race, color, 
or previous condition of servitude, the prohibition pre- 
vents any future distinction on account of race, color, etc. ; 
while in states which had previously limited the right to 
a particular race, color, or condition, the prohibition only 
applies to future restrictions on these accounts, and works 
no present or immediate change in their constitutions. 
Otherwise, qualifications as to age, sex, etc., would have 
been required by the amendment: for the right, if limited 
at all, must be limited by, or in pursuance of, the grant, 
and not by a prior, different, and extraneous act, which 
had and has no relation thereto. This construction, we 
may add, is strictly in accordance with the construction of 
other prohibitions contained in our constitutions : such, for 
instance, as that 'the right of the people to keep and bear 
arms shall not be infringed/ 1 Here, and in all the like 
cases, no one has ever supposed that the right was origin- 
ally created or extended, or newly conferred or vested; all 
have agreed that the right was recognized as a right es- 
tablished by the law of each state, and as one to be guarded 
against future infractions. 

Had the amendment been designed to newly invest the 
citizens of the United States with a right to vote, such as 
they had not previously and could not have under the 
state constitutions, the language would probably have com- 
ported with the purpose in view : as where it was originally 
designed to invest the citizens of each state with the char- 
acter of citizens of the United States, it was provided that 
^the citizens of each state shall be entitled to all privileges 
-and immunities of citizens in the several states;' 2 so here 

1 Const. U. S./Amend. Art. 2. 

2 Const. U. S. Art. iv, \ 2 ; Art. Confed. rv. 



260 POLITICAL AND CONSTITUTIONAL LAW 

the language would probably have been that ' citizens of 
the United States shall be entitled to the rights and privi- 
leges of voters (or electors) in the several states ;' and if 
any limitation or qualification had been intended, that 
would also have been expressed; and the prohibition as to 
infractions of the right, would then have followed. This 
would have opened the eyes of 'the people ' to what was 
designed. 

1 171, There are two, and only two sources from which the 
right 'to vote ' can be derived; state, and federal. If 
derived from the state, it is the right which was previously 
vested by the state constitution, and is exercised solely in 
virtue of state authority, as heretofore : if derived through 
any construction, operation or effect, of the new amend- 
ment, it is a wholly new right, a right to be exercised 
solely, in virtue of federal authority; and all the conse- 
quences formerly stated, must be accepted. 

The amendment concludes in these words: — 'Congress 
shall have power to enforce this article by appropriate 
legislation/ If, therefore, any new right is vested, it is. 
the right of equal and universal suffrage, the right of a 
wholly new political community, — in the language of the 
amendment, ' the right of citizens of the United States to 
vote ', — and the entire control of this new right, involving, 
as we have seen, the paramount sovereignty of 'the peo- 
ple/ is forever ceded, aliened and abandoned by them r 
and vested in their now sovereign rulers, the federal con- 
gress. The fundamental principle of our political consti- 
tutions, 'AH power is inherent in the people/ must hence 
be understood to mean, 'All power is vested in Congress/ 

1 172. But we cannot assent to the conclusion that any new 
power is vested in congress : for congress had always the 
power to enforce every article of the federal constitution 
' by appropriate legislation ;' and still has such power, un- 
less by this express and specific delegation of power, in the 
new amendment, the power to enforce other articles by 
appropriate legislation is impliedly withdrawn. Nor can 



OF THE UNITED STATES. 261 

we adopt the construction of the new amendment that 
gives to citizens of the United States a right to vote which 
they previously had not; consequently resolves the states 
into a single state, and overturns the fundamental princi- 
ples of our political system: because, first, it cannot be 
supposed that any such effect was designed ; secondly, no 
alienation of the inalienable right of 'the people' of each 
state to govern themselves in matters peculiarly and im- 
mediately affecting themselves, no alienation of the su- 
preme control of the right of suffrage, however formal or 
solemn the deed assuming to effect such alienation, could 
for a moment be valid or binding; 1 thirdly and lastly, any 
•construction of the federal constitution, or of any provis- 
ion therein, which merges the several political communi- 
ties of which the union is composed, into a single political 
community or state, would render the whole constitution 
inapplicable to our then political condition. That consti- 
tution was never formed by any single political state, nor 
for any single political state ; as we have seen, it was formed 
by the states, and for a union of states; in the language of 
its preamble, 'for the United States of America;' and its 
whole operation is based upon the existence of the states, 
and the action of the states, as several, sovereign, and in- 
dependent political communities. 2 

"We have now examined, at considerable length, the 

LEGISLATIVE POWER OF THE PEOPLE, and also the SOVEREIGN 

enactments by which it is evidenced: we have searched 
the records themselves, and observed the method of pro- 
ceedure ; we have traced the acts of sovereign power to 
the sovereign himself, and found him, finally, in the char- 
acter of the elector as a co-equal member of the political 
state. 

Let us in conclusion of this subject be reminded, by one 
of our ablest jurists and statesmen, of the one grand object 
of those sovereign enactments. 'The chief if not the only 
•object of written constitutions, is to limit the powers of 

1 See ante, \ 87 a, et seq. and $ 135 and note. 
* See Texas v. White, 7 Wall. 721. 



§173. 



62 POLITICAL AND CONSTITUTIONAL LAW 

government, whether they are to be exercised by the few 
or the many, and it is only by such means that the people 
can be assured against the encroachments of power. 
" Eternal vigilance is the price of liberty/' in any form of 
government, so prone is power to advance beyond, rather 
than to recede within, its just limits. Eesistance and. 
bloodshed designed to rebuke and restrain it, have crim- 
soned the pages of history for ages; but it is to modern 
civilization the boast belongs of a remedy, in the limita- 
tions of constitutions and charters. But these limitations 
to be effectual, must be enforced. Neither times nor cir- 
cumstances should claim exemption from such limitations. 
The more tubulent the times, or pressing the circumstances,, 
the more need there is of adhering to these. When peace 
reigns, an enlightened people need to realize but little the 
fact of government. The time when most it is to be val- 
ued and venerated, is when commotion, excitement, peril 
and war exist, it is justly administered in accordance with 
its constitutional limitations. If we have emerged from 
such a condition and passed the ordeal with but little to> 
condemn as infractions of the constitutions of our country,, 
we have indeed great occasion to rejoice. If, on the con- 
trary, THEIR SAFEGUARDS HAVE BEEN WEAKENED OR OVER- 
THROWN, IT SHOULD BE KNOWN, AND THE INJURY REPAIRED AS 
SPEEDILY AS POSSIBLE/ x 

8 180 Du- Allegiance, as we formerly had occasion to remark,, 
ties and rights when speaking of the principles established by the Eevo- 
of citizens as lution, 2 is the tie, or obligation, which binds the citizen to* 
such. the political state, in return for that protection which the 

state affords to him. The duty of obedience, and the right 
of protection, are strictly correlative. The relation in 
which they arise, is that of the sovereign to his people,, 
citizens or subjects. Now as allegiance can only be due 
to the sovereign ; and as, in this country, we have many 
sovereigns, namely, the several bodies of electors com- 
posing the several states ; it follows as of course that alle- 

1 Per Thompson, Justice, 50 Penn. St. 167-168. 

2 Ante, Z 55. 



OF THE UNITED STATES. 263 

giance can only be due to these several bodies of electors. 1 
'All power is inherent in the people ;' that is, the people, 
in their capacity of electors, are the sovereign. But the 
people being, in their capacity of electors, not one, but 
several bodies, the allegiance of the citizen is due to the 
sovereign wills of these several bodies, as expressed in 
their state constitutions, and to the sovereign wills of all 
concurrent in one, as expressed in their federal constitu- 
tion. His allegiance is due, then, not only to his par- 
ticular state, but also to the United States. Citizens of 
the United States are therefore said to be subject to a 
two-fold allegiance. 

This two-fold allegiance was the subject of serious de- \ 181. Two- 
bate in some of the conventions of the states, pending the fold character 
adoption of the federal constitution. The objections made of alle g iance - 
by some, to having two sovereigns over one and the same 
subject, were answered by arguments referring to the 
boundary line between their respective jurisdictions, and 
showing the improbability of their ever conflicting one 
with another. That the federal constitution should be 
brought into conflict with the constitution of any one 
state, was never designed either by its framers, or by 
the several bodies of electors by whom it was adopted. 
Two constitutions and two governments for each state, were de- 
signed and established j not the one over the other, but each 
within the sphere of operation peculiarly marked out and 
appropriated for it. The two constitutions, in relation to 
each state, proceed from one and the same original foun- 
tain of organic law ; namely, the electors of each state, 
not the people of the United States as a single political 
body j for in the capacity of a single political body, the 
people of the United States have never yet acted or even 
existed. We have seen that the ratification of the federal 
constitution by the conventions of any nine of the original 
thirteen states, was, according to the last article of that in- 

1 If indeed it were due to the people in their natural capacity, then, 
by consequence, it were due to humanity in general ; not to any particu- 
lar state, but to all mankind. 



264 POLITICAL AND CONSTITUTIONAL LAW 

strument, to be sufficient for the establishment thereof as 
between the states so ratifying the same. 1 We have also 
seen that the ratification of that instrument was the work 
of an independent and sovereign convention of the electors 
of each state. Thus each body of electors, as a sovereign 
and independent political community, established not only 
their own constitution, but also, in so far as it related to 
them, the constitution of the United States : the two consti- 
tutions, in relation to them, resting solely in their sovereign 
authority, and forming a single organic law; establishing, 
indeed, a single government, internally administered accord- 
ing to their state constitution, by officers chosen by them 
for that purpose, and distinguished as officers of the state; 
externally administered, in relation to the other states and 
to foreign governments, according to the federal constitution, 
by officers chosen in like manner for the purposes of the 
federal union, and distinguished as officers of the United 
States. 2 Allegiance is therefore due to both the state and 
federal governments, in one and the same and consequently 
in an equal degree. It is impossible to conceive that the 
action of the people or electors of a state, could be of 
higher solemnity or of greater obligation in the ratifica- 
tion of the federal constitution, than in the enactment of 
their state constitution. 3 Proceeding from one and the 
same original source and fountain of power, they must of 
necessity be of equal obligation ; and with respect to that 
source, must be one and the same supreme law, however 
different and distinct in relation to the governments they 
establish. 4 Upon no other principle indeed could allegiance 
have ever been due to both, than that of the supremacy 

1 Const. U. S. Art. vn. 

2 "We have the authority of Hamilton for the proposition, that we 
ought to ' consider the state governments and the national government, 
as they truly are, in the light of kindred systems, and as parts of one 
whole.' The Federalist, No. 82, pp. 378 and 379. 

3 As to the supremacy clause in the constitution of the United States, 
see ante, \ 143, et seq. 

4 It will be observed, that here I speak of the action of the people 
of each state as it relates to themselves. As it relates to themselves, it 
follows of course, that the powers of government may be resumed by 



OF THE UNITED STATES. 265 

of each within its appropriate sphere, and the division 
-and separation of the spheres wherein they should sever- 
ally act. Within the limits of those powers which are 
delegated to each by its own fundamental and organic law, 
unqualified obedience is due to both; 1 but beyond those 
limits, obedience is not due. On either hand, the terms 
of the compact determine the extent of the obligation. 
The right of protection, corresponding to this duty of 
•obedience, is therefore none other than the right of the 
-citizen to a faithful and impartial administration of the 
law; and this is a right that may be legally enforced 
against any officer who fails in the fulfilment of his trust, 
and against any private individual who neglects the per- 
formance of his duty. 

It is not to be questioned, that all our laws, without dis- g 182. Obli- 
tinction, so far as pursuant to our political constitutions, gation of hu- 
are of absolute authority and supreme obligation; binding man laws, 
alike upon the private judgments and consciences of all 
individuals, in relation to things of equal importance to 
all. Human laws, it is sometimes said, if inconsistent with 
the law of nature or the law of God, impose no duty and 
•confer no right; for. then the first and highest duty of all, 
is to disobey them. This in terms is strictly true. The 
argument, however, often made by bigoted minds, assum- 
ing a clear and certain perception and a perfect understand- 
ing of those primary laws, and a known disregard of the 
duties they enjoin in the framing and enacting of the civil 
or political laws, is exceedingly erroneous, and also of 
wicked and mischievous tendency. For many who per- 
ceive not its error, proceed to the doctrine that the private 
conscience of the individual, is, for him, the ultimate cri- 
terion of right and wrong, not merely in matters peculiarly 
relating to himself, but also in his social, civil, and polit- 
ical relations; wherein his equals in right are equally 

them. But the powers of the federal government, being founded in 
compact with the other states, and not in the sole action of any single 
state, those powers may not be resumed unless by the action of a ma- 
jority of the states. See ante, \ 137. 
1 See 2 Kent's Com. 44. 



2183. 



266 POLITICAL AND CONSTITUTIONAL LAW 

concerned. Laws enacted and sanctioned by the people- 
themselves, cannot but express the religion and philosophy^ 
the enlightened conscience and the common sense, of the 
whole body; to which the religion and philosophy, the 
private conscience and private judgment, of each individ- 
ual or member of that body, is bound to conform j at least 
in matters wherein his equals are equally entitled to be 
heard. Upon a different principle, no civil or political 
state can exist. Peace and war are the only alternatives y 
the one or the other of which, we are bound to accept. If 
peace be preferred, the sovereign mind and will of the 
people, whatever the law thereby prescribed, must be re- 
spected by all as of absolute and unlimited obligation ; as 
being, in the strictest sense, supreme ; supreme in reason,, 
supreme in wisdom, supreme in right : there being no 
other criterion of what is reasonable, just and right, sanc- 
tioned as such by all, than this expression of the religion 
and philosophy of all. Such is the just and reasonable- 
ground of the obligation which equally binds every mem- 
ber of society to implicitly obey the laws of the civil and 
political state to which he belongs. He is not bound to 
obey them because he thinks them reasonable and just:, 
nor is he excusable for disobeying them because his con- 
science declares them unrighteous and unjust. 

Or the right of expatriation ; by which is meant, the- 
right of a citizen to dissolve his political connection with 
the state of which he is a member, and attach himself to a. 
foreign government. Though the rules of our law as to 
the naturalization of aliens, by an oath adjuring their old 
allegiance and invoking the protection of a new one, would 
seem to virtually imply that our citizens may, if they wish r 
transfer their allegiance to a foreign power, by the same 
or similar means; yet the generally prevailing, opinion 
has been that they cannot lawfully so do by any mere act 
of their own, and without the express permission both of 
the State and of the United States. 2 It has, however, 
sometimes been assumed that expatriation is a natural and 

1 See 2 Kent's Com. 44 to 49. 



OF THE UNITED STATES. 267 

fundamental right, and that the principles maintained and 
the practice adopted by the state and federal govern- 
ments, are sufficient evidence of its recognition. 1 By the 
constitutions of many of the states, the right of immigra- 
tion from one state to another, is declared to be a natural 
and inherent right. 

Ey the law of nations, according to Yattel, a man may \ 184 * 
have a right to quit his country, and attach himself to a 
foreign state, in the following cases at least. 1. If he can- 
not procure subsistence for himself and his family without 
so doing. 2. If an intolerant party obtain control of the 
government, and enact tyrannical and unconstitutional 
laws. 2 Painful alternative to which a citizen may be 
driven by acts of intolerance and oppression ! But it 
is hardly supposable that either of these cases can ever 
occur in this country, — a country of such vast extent, va- 
riety and resources, as may never fail to supply the means 
of life to all, and where written constitutions, so long as 
the people are just to themselves, must ever form an in- 
superable barrier to arbitrary power. 

The right of expatriation is now fully and positively 
established by an act of congress in these words : — 
1 Whereas the right of expatriation is a natural and inher- 
ent right of the people, indispensable to the enjoyment of 
the rights of life, liberty, and the pursuit of happiness; 
and whereas, in the recognition of this principle, this gov- 
ernment has frequently received emigrants from all na- 
tions, and invested them with the rights of citizenship;, 
and whereas, it is claimed that such American citizens, 
with their descendants, are subjects of foreign states, owing 
allegiance to the governments thereof; and whereas it is 
necessary to the maintenance of public peace that this, 
claim of foreign allegiance should be promptly and finally 
disavowed : Therefore any declaration, instruction, opinion, 
order, or decision, of any officer of the United States,, 
which denies, restricts, impairs, or questions the right of 

1 See Stoughton v. Taylor, 2 Caine, C. C. 655. 

2 Law of Nations, b. 1. \ 223 and context. 



268 POLITICAL AND CONSTITUTIONAL LAW 

expatriation, is declared inconsistent with the fundamental 
principles of the Kepublic/ 1 



(2 fa) OF THE LEGISLATIVE POWERS OF THE STATE 

LEGISLATURES: AND HEREIN FIRST 

(1 g b) OF THE CONSTITUTION OF THESE BODIES. 

a 186. Poli- ^7 eacn of the state constitutions, the legislative power 
cy of dividing of the government is vested in a state legislature, com- 
the legislative j)osed of two distinct branches, a house of representatives, 
-bodies. an( j a sena t e? each of which has a negative on the other. 2 

This constitution of the legislative body, making it to con- 
sist of two independent and co-ordinate branches, is 
founded in the policy of dividing and arranging the sev- 
eral offices in such a manner that each may be a check on 
the other, and of so contriving the interior structure of the 
government, as that its several constituent parts, by their 
mutual relations, may be the means of keeping each other 
in their proper places. 3 It is a part of the policy essential 
to our system, by which the political power is divided be- 
tween two governments for the people of each state, the 
one internal, the other external, and then the portion al- 
lotted to each government subdivided, among its separate 
departments. Hence a double security arises to the rights 
of the people. ' The different governments will control 
each other, at the same time that each will be controlled 
by itself. The great security against a gradual concentra- 
tion of the several powers in either government, or in 
either department of either government, consists in giv- 
ing to those who administer each the necessary constitu- 
tional means, and personal motives, to resist encroach- 
ments of the others. The provision for defence, in this, 

1 Rev. Stats. U. S. \ 1999 ; Act 27th July, 1868, c. 249, \ 1 ; Stats, at 
Large, v. 15, p. 223. 

2 The two branches are distinguished in different states by different 
names. See p. 89, ante. 

3 The Federalist, No. 51, pp. 238-240. 



OP THE UNITED STATES. 269 

as in all other cases, must be made commensurate to the 
danger of attack. Ambition must be made to counteract 
ambition. The interest of the man must be connected 
with the constitutional rights of the place. It may be a 
reflection on human nature, that such devices should be 
necessary to control the abuses of government. But what 
is government itself but the greatest of all reflections on 
human nature V 1 

The members of the house of representatives, number- \ 187. 
ing generally about four to one of the senators, are elect- House of Re- 
ed annually in some of the states, 2 and biennially in preservatives. 
others/ by and from among the qualified electors ; and the 
representation is apportioned among the several towns or 
counties, as nearly as may be, according to their respect- 
ive numbers. The qualifications for membership, are some- 
times prescribed by the state constitution, and at other times 
left to be determined by the electors themselves. The mem- 
bers, however, must always be electors and residents of 
the state. 

The senators also, varying in number from twelve to g ig8. State- 
forty or over, but always a much less numerous body than Senate. 
the house of representatives, are elected by and from 
among the electors ; the state being divided into senatorial 
districts, and the electors of each district entitled to a sen- 
ator. They are chosen for various terms ; one year,* two 
years, 5 three, 6 or four years. 7 When chosen for three years, 
they are divided into three classes ; the seats of the first 
class are vacated at the expiration of the first year ; of the 
second, at the expiration of the second year ; and of the 
third, at the expiration of the third year; so that a third 
of their number is elected annually. When chosen for 
four years, they are divided into two classes, and one-half 
of their number is elected biennially. The qualifications 

!The Federalist, No. 51, pp. 239, 241. 

2 As in Maine, N. H., Mass., R. I., Conn., N. Y., N. J., Penn. 

3 As in Del., Tenn., Ky., Ohio. * In Maine, N. H., Ver. 

5 In New York. 6 In New Jersey, Pennsylvania. 

7 In Del., Md., Ky., Ind. 



270 POLITICAL AND CONSTITUTIONAL LAW 

for senators are also different in different states. In some 
of the states/ they must be thirty years of age ; in others, 2 
twenty-five or over; and in all, they must be from the 
body of electors, and have also been for a period varying 
from one to seven years, inhabitants of the state. 

The regular sessions of the state legislatures are gen- 
erally annual; though in some states they are only bien- 
nial. 

a 189. Pow- Each branch of the legislature is invested with all the 
•ers of each powers essential to a legislative body, except that the con- 
"house. Privil- currence of both branches is necessary in the enactment 
>eges of mem- f j aws# 3 Each house is the sole judge of the election re- 
tarns and qualifications of its members. Each elects its 
own speaker, clerk and other officers, except in some few 
states where the lieutenant-governor is president of the 
senate. Yacancies are usually filled by new elections; 
sometimes however by the house and senate jointly. The 
house is invested with the sole power of impeachment, and 
the senate with the sole power of trying impeachments. 
The members of both branches, in all cases except treason, 
felony, and breach of the peace, are privileged from arrest, 
during attendance at the sessions of their respective houses, 
and in going to and returning from the same; and for any 
speech or debate in either house, they cannot be ques- 
tioned in any other place. They are also entitled to a 
compensation for their services, to be ascertained by law, 
and paid out of the treasury of the state. 



(2 g b) OF THE NATURE AND EXTENT OF THE LEGISLATIVE 
POWERS OF THE STATE LEGISLATURES. 

„ lq0 p The legislature of each state, as we have formerly seen, 4 

ers general, * s invested by the state constitution with a general and 

not enumera- .--—.— 

1 N. H., Ver., N. J., Ky. 2 Penn., Del. 

3 See the General Form of a State Constitution, pp. 89, 90, ante. 

4 Ante p. 90, No. 49 of General Form of State Constitution. 



OF THE UNITED STATES. 271 

discretionary power to make all reasonable laws and ordi- 
nances, proper and necessary for the defence of the state 
and the welfare of its people, and not repugnant to that 
constitution. The powers of the state legislatures, are not 
specified and enumerated, as are those of the federal legis- 
lature. As formerly remarked, in the state constitutions, 
we look only for express limitations ; in the federal con- 
stitution, only for express and specific grants, of legisla- 
tive power. In the words of the great Webster, l Every 
state is an independent, sovereign, political community, 
except in so far as certain powers, which it might other- 
wise have exercised, have been conferred on a general 
government, established under a written constitution, and 
exerting its authority over the people of all the states. 
This general government is a limited government. Its 
powers are specified and enumerated. All powers not con- 
ferred upon it still remain with the states and with the 
people. The state legislatures, on the other hand, possess 
all usual and Textraordinary powers of government, sub- 
ject to any limitations which may be imposed by their own 
constitutions, and with the exception of the operation on 
those powers of the constitution of the United States/ 1 

Sovereign, free and independent states, like natural per- a i^ p w- 
sons, who are equal in right, must, in becoming members ers denied to 
of a political union, agree to be governed by the common the States. 
voice in the exercise of such rights as properly belong to 
their external sovereignty, and are not essential to the 
absolute right of self-government inherent in each. Each 
individual, for example, upon becoming a member of civil 
society, no longer retains his natural right of redressing 
and avenging violations of law; for one of the principal 
objects of the association was the establishment of a com- 
mon authority for this very purpose. So when the union 
was formed, the war-making powers, together with others 
pertaining to the external sovereignty of each state, were, 
by common consent, confided to the federal government. 

1 See "Webster's Letter to the Barings of London in 1839, Nile's Reg- 
ister, Vol. lvii, pp. 273-274. Ante, \ 133. 



272 POLITICAL AND CONSTITUTIONAL LAW 

And generally, the powers not essential to the external 
sovereignty of each state, were merged in the common 
authority of all ; and the several states, by their federal 
compact, were prohibited from exerting those powers, ex- 
cept as therein excepted and provided. The provisions 
of the federal constitution expressly prohibiting the states 
from the exercise of powers, are the following : 

' ~No state shall enter into any treaty, alliance or confed- 
eration 5 grant letters of marque and reprisal; coin moneys 
emit bills of credit; make anything but gold and silver 
coin a tender in payment of debts; pass any bill of at- 
tainder, ex post facto law, or law impairing the obligation 
of contracts; or grant any title of nobility/ x 

1 No state shall, without the consent of congress, lay any 
imposts or duties on imports or exports, except what may 
be absolutely necessary for executing its inspection laws;. 
and the net produce of all duties and imposts, laid by any 
state on imports or exports, shall be for the use of the 
treasury of the United States, and all such laws shall be 
subject to the revision and control of congress. No state 
shall, without the consent of congress, lay any duty of 
tonnage, keep troops or ships of war in time of peace, enter 
into any agreement or compact with another state, or with 
a foreign power, or engage in war, unless actually invaded, 
or in such imminent danger as will not admit of delay/ 2 

Many other powers, being exclusively vested in the fed- 
eral government, are thereby impliedly forbidden to the 
states. 

Z 192. Amer- ^ distinguished writer, who is seldom or never at fault 
ican Legisla- in his statements of the law, says ' It has never been ques- 
tures contras- tioned that the American legislatures have the same un- 
ted with the ij m ited power in regard to legislation which resides in the 
British Parliament, except where they are restrained by 
written constitutions/ 3 It is not understood, however, 
that our constitutions were designed and formed to restrain- 

1 Const. IT. S. Art. 1, \ 10. 

2 Id. 

3 See Am. Law Reg. for July, 1868, p. 521. 



ment. 



OF THE UNITED STATES. 273 

powers antecedently and independently existing. Their 
design was to originate and delegate powers, such as the 
people deemed proper and necessary to their governments; 
and to this end, the people sometimes resorted to express 
restrictions and prohibitions by way of defining the 
powers conferred. Strictly speaking, indeed, there is no 
analogy between the power of the British Parliament and 
the power of any American legislature. The former, 
theoretically at least, absorbs the absolute sovereignty of 
the nation, the power to make and unmake its constitu- 
tion. The British theory is completely reversed by our 
American constitutions; the fundamental principle of our 
system being that i all power is inherent in the people. ' As 
a necessary consequence, our American legislatures possess 
no powers whatever but such as are delegated to them by our 
written constitutions. The only recognized power, in this 
country, at all analogous to that of the British legislature, 
is the inherent, inalienable, and paramount sovereignty of 
the people : which could never be confided to any legisla- 
ture, without a total subversion of the very foundations 
of our American system. The British constitution is the 
will of Parliament. Our constitutions are the wills of our 
peoples — that is, of the bodies of electors composing the 
states. No American legislature, therefore, can alter or 
affect the constitution in which it is founded, and from 
which it derives its only authority. 

' In England, the authority of Parliament runs without 
limits, and rises above control. It is difficult to say what 
the constitution of England is ; it lies entirely at the 
mercy of Parliament ; it bends to every governmental ex- 
igency ; it varies and is blown about by every breeze of 
legislative humor or political caprice. In America, the 
case is widely different. Every state in the union has its 
constitution reduced to written exactitude and precision. 
What is a constitution ? It is the form of government, 
delineated by the mighty hand of the people, in which 
certain first principles or fundamental laws are estab- 
lished. The constitution is certain and fixed; it contains 
the permanent will of the people, and is the supreme law 

R 



274 POLITICAL AND CONSTITUTIONAL LAW 

of the land ; it is paramount to the power of the legisla- 
ture, and can be revoked or altered only by the authority 
that made it. The life-giving principle and the death- 
doing stroke must proceed from the same hand. What 
are the legislatures ? Creatures of the constitutions ; they 
owe their existence to the constitutions ; they derive their 
powers from the constitutions; the constitutions are their 
commissions j and therefore all their acts must be con- 
formable to them, or else they will be void. A constitu- 
tion is the work of * the people ' themselves, in their orig- 
inal, sovereign, and unlimited capacity. A law is the 
work or will of the legislature, in their derivative and 
subordinate capacity. The one is the work of the creator 
and the other of the creature. The constitution fixes 
limits to the exercise of legislative authority, and pre- 
scribes the orbit within which it must move. In short, 
the constitution is the sun of the political system, around 
which, the legislative, executive, and judicial bodies, must 
revolve. Whatever may be the case in other countries, 
yet in this there can be no doubt that every act of the 
legislature repugnant to the constitution is absolutely 
void/ 1 

Numerous are the cases, threfore, in which acts of the 
legislatures, and acts of congress, have been declared void 
by the courts, as being repugnant to the constitution, state 
or federal or both. 

I 193. The The security afforded by written constitutions, superior 
vice of our in authority to the wills of the legislatures, is, however, 
system. rendered abortive, by reason of the existence of that sin- 

gular anomaly in the federal constitution, by which three- 
fourths of the state legislatures, without consulting the will 
of the people, may abolish the whole system of constitu- 
tional government in America. I refer to the power of 
amendment under which but recently, by a dominant po- 
litical faction, the paramount sovereignty of the people of 
each state has been usurped, and our system of states 
united upon the federative principle, completely over- 

1 Per Justice Patterson, 2 Dall. 307, et seq. 



OF THE UNITED STATES. 275 

turned, and A single political state erected instead. 1 
This power of our state legislatures, to change the federal 
■constitution at will,, and so to abolish their state constitutions, 
is the radical vice of our system, an absolute self-contra- 
diction in the theory of self-government. 2 The power to 
change the organic law of political societies, is the highest 
of sovereign powers, and can only belong to such legisla- 
tures as are clothed with the original, ' inherent and in- 
alienable' sovereignty of 'the people/ It cannot exist in 
subordinate legislative bodies. Its delegation to the state 
legislatures, as the fifteenth amendment proves, was an act 
of political self-murder by 'the people' of each state. It 
was, in fact, the greatest of conceivable absurdities, to 
clothe them with a power to change the organic law of all 
the states, and yet deny to each the power to change its 
own ! 



iB fa) OF THE LEGISLATIVE POWER OF CONGRESS; AND 
HEREIN", FIRST 

(1 g c) OF THE CONSTITUTION OF CONGRESS. 

The federal government, as formerly remarked, is framed „. . 

upon the model and principles common to the governments s ^ on f con . 
of the states. Its powers are divided between and vested gress. 
in three several departments, legislative, judicial, and ex- 
ecutive ; though originally united and vested in a single 
body. Its legislative powers are vested in a federal legis- 
lature or congress, composed of a senate and a house of 
Tepresentatives. 

The policy of dividing legislative bodies into two dis- 
tinct branches, 3 is of greater importance perhaps as applied 

x See \\ 171 to 179, ante. I would not be understood to say that this 
has been effectually accomplished; but only that such must be the 
•effect of the xvth Amendment, if its underlying purpose be not ar- 
rested. 

2 See ante, \\ 87 a., 88. 

3 Ante, I 186. 



276 POLITICAL AND CONSTITUTIONAL LAW 

to a federal than as applied to a state legislature : es- 
pecially when, as in this country, sovereign states, in their 
several political capacities, and the people of those states, 
in their character of sovereign electors, are to be repre- 
sented in the making of the federal laws. 

1 195. The federal house of representatives is composed of 

House of Ke- members chosen every second year by th.Q people of the sev- 
presentatives. era ^ s f a f es . ^hat j Sj \>y 8UG \ 1 f ^he p e0 pl e j n eacn state as 

have the qualifications requisite for electors of the most 
numerous branch of the state legislature. 1 

At the time of the formation and adoption of the federal 
constitution, the right of suffrage was regarded as a funda- 
mental article of republican government, beyond the 
sphere of federal jurisdiction, and subject to the exclusive 
control of each body of electors in framing the state con- 
stitution. The question, therefore, who should be entitled 
to vote for representatives in congress, was left to be de- 
termined by the electors of each state, according as they 
should determine who should be entitled to vote for repre- 
sentatives in their state legislature. 2 This was always an 
essential of the internal sovereignty of 'the people' of 
each state ; and it was intended to secure it against all pos- 
sible encroachments of government, state or federal. 

When vacancies happen in the representation of any 
state, the executive thereof issues writs of election to fill 
them. 3 The times, places, and manner, of holding elections 
for representatives in congress, are prescribed in each state 
by the legislature thereof: but congress may, at any time 
by law, make or alter such regulations. 4 This power was 
delegated to congress as a means of securing the election 
of members thereto, in case a state should neglect or refuse 
to make adequate provision for the purpose. 5 

The qualifications required for a representative in con- 

1 Const. IT. S. Art. I, \ 2. 

2 The Federalist, No. 52, p. 243. See ante, \ 94 et seq. 

3 Const. U. S. Art. i, \ 2. 
* Id. Art. i, I 4. 

5 See the Federalist, No. 59 ; 1 Kent's Com. *232. Ante, \ 94 a. 



OF THE UNITED STATES. 277 

gress, are, to some extent, prescribed by the constitution. 
He must be of the age of twenty -five years ; must have 
been seven years a citizen of the United states ; l must, 
at the time of his election, be an inhabitant of the state he 
is to represent; and, during the time of his service, must 
hold no office under the United States. 2 Under these rea- 
sonable limitations, the people of a district may elect 
whomsoever they please for their representative. 

The federal representatives are now apportioned among g 196. Ap- 
the several states according to their respective numbers, portionment 

-counting the whole number of persons in each state, and of Re P res en- 

tatives 
excluding Indians not taxed. 3 The number of representa- 
tives to which a state may be entitled cannot exceed one 
for every thirty thousand ; but each state is entitled to at 
least one representative. 4 The actual enumeration, or 
census of inhabitants, is once to be made in every ten 
years, and the representatives are then to be apportioned 
upon the same, under a new ratio, according to the rela- 
tive increase of the population of the states. 5 The num- 
ber of representatives at first fixed by the constitution, till 
•a census should be taken, was sixty-five. But the appor- 
tionment under the fourth census, being to a ratio of one 
Tepresentative for every forty thousand persons in each. 
estate, made the whole number of representatives amount 
to two hundred and thirteen members. 6 Since then, with 
every new census, the ratio of representation has been en- 
larged, in proportion to the increased population; so that 
the number of members has generally been not far from 
two hundred and fifty. 7 

\ Yet no one of the original negro representatives had been seven years 
a citizen of the United States. 

2 Const. Art. 1, \\ 2 and 6. — See xivth Amendment \ 3, ante, p. 155. 

3 xivth Amendment, \ 2. 

4 Const. Art. 1 \ 2. 
* Id. $2. 

6 1 Kent's Com. * 230. 

7 The house of representatives is now composed of two hundred and 
ninety-two members, apportioned among the several states as follows : 
-Maine, 5; New Hampshire, 3; Vermont, 3; Massachusetts, 11; Rhode 



278 POLITICAL AND CONSTITUTIONAL LAW 

'No political problem is less susceptible of a precise so- 
lution, than that which relates to the number most conve- 
nient for a representative legislature : nor is there any 
point on which the several states have been more at vari- 
ance in policy; whether we compare their legislative 
assemblies directly with each other, or consider the pro- 
portions which they respectively bear to the number of 
their constituents. The ratio between the representatives 
and the people, ought not to be the same, where the latter 
are very numerous, as where they are very few. Nothing 
can be more fallacious than to found our political calcula- 
tions on arithmetical principles. Sixty or seventy men 
may be more properly trusted with, a given degree of' 
power, than six or seven. But it does not follow, that six 
or seven hundred would be a better dejDOsitory. And if 
we carry on the supposition to six or seven thousand, the 
whole reasoning ought to be reversed. The truth is, that 
in all cases, a certain number at least seems to be neces- 
sary to secure the benefits of free consultation and discus- 
sion : and to guard against too easy a combination for im- 
proper purposes: as on the other hand, the number ought 
to be kept within a reasonable limit, in order to avoid the 
confusion and intemperance of a multitude. In all very 
numerous assemblies, of whatever characters composed,, 
passion never fails to wrest the sceptre from reason. Had 
every Athenian citizen been a Socrates, every Athenian 
assembly would still have been a mob.' 1 

3 197. The The senate of the United States is composed of two sen- 
Senate, ators from each state, chosen by the legislature thereof, 
for six years, and each senator has one vote. 2 The sena- 

Island, 2 ; Connecticut, 4 ; New York, 33 ; Pennsylvania, 27 ; Delaware,. 
1 ; Maryland, 6 ; Virginia, 9 ; North Carolina, 8 ; South Carolina, 5 ; 
Georgia, 9 ; Alabama, 8 ; Mississippi, 6 ; Louisiana, 6 ; Ohio, 20 : Ken- 
tucky, 10; Tennessee, 10; Indiana, 13; Illinois, 19; Missouri, 13; Ar- 
kansas, 4 ; Michigan, 9 ; Florida, 2 ; Texas, 6 ; Iowa, 9 ; "Wisconsin, 8 ; 
California, 4 ; Minnesota, 3 ; Oregon, 1 ; Kansas, 3 ; West Virginia, 3 ;; 
Nevada, 1 ; Nebraska, 1 ; New Jersey, 7. 

1 The Federalist, No. 55. Madison. 

2 Const. Art. I, § 3. 



OF THE UNITED STATES. 279 

tors, immediately after they had assembled in consequence 
of the first election, were, in pursuance of the constitution, 
divided, as equally as might be, into three classes. The 
seats of senators of the first class were vacated at the ex- 
piration of the second year; of the second class, at the 
expiration of the fourth year; and of the third class, at 
the expiration of the sixth year; so that thereafter one- 
third might be, as they have since been, chosen every sec- 
ond year. 1 The provision was borrowed from a similar 
one in some of the state constitutions, of which Virginia 
gave the first example; and it is admirably calculated, on 
the one hand, to infuse into the senate, biennially, renewed 
public confidence and vigor, and, on the other, to secure 
the benefit of the experience of members in the administra- 
tion of the federal affairs. 2 If vacancies happen by resig- 
nation or otherwise during the recess of the legislature of 
any state, the executive thereof may make temporary ap- 
pointments until the next meeting of the legislature, which 
shall then fill such vacancies. 3 

This constitution of the federal senate, was designed to § 198. The 
secure to each state an equal voice and equal weight in the states repre- 
federal government, v without any regard to disparity of sen e ' 
population, wealth or dimensions ; 4 and by a further pro- 
vision, it is expressly declared, that no state shall, without 
its consent, be deprived of its equal suffrage in the senate. 5 
These provisions of the federal constitution, are grounded 
in the sovereignty of the states : every independent com- 
munity being, by the law of nations, an equal member of 
the society of nations, and having a perfect right to dictate 
its own terms, before it enters into a social compact. On 
the principle of a consolidation of the states, this organi- 
zation of the senate would have been inadmissible ; for in 
that case, each state would have been merged in one single 

1 Const. Art. i, \ 3. 

2 See The Federalist, No. 62. See \ 188 ante. 

3 Const. Art. i, \ 3. 

4 See Eawle on Const, c. 3, p. 36. ] 

5 Const.Art. v. 



280 POLITICAL AND CONSTITUTIONAL LAW 

and entire government. 1 At the time the articles of con- 
federation were being prepared, it was attempted to allow 
the states an influence and power in congress in a ratio to 
their numbers and wealth : but the idea of separate and 
independent states, was at that day so strongly cherished, 
that the proposition met with no success. 2 The election 
of the senate by the state legislatures, is also a recognition 
of their separate and independent existence ) and while 
rendering them absolutely essential to the operation, gives 
them such an agency in the formation, of the federal gov- 
ernment, as must secure their authority. 3 "Whether the 
appointment of senators shall be made by a joint or by a 
concurrent vote of the two branches of the state legisla- 
ture, the constitution does not direct. The difference is 
that in a joint vote, the members of both houses assemble 
together and vote numerically ; while a concurrent vote is 
taken by each house voting separately, the vote of the 
one receiving the assent of the other branch. 4 It seems 
to have been generally conceded, that as the legislature 
may prescribe the manner of choosing senators, it may 
prescribe that they shall be chosen by & joint vote or bal- 
lot of the two houses, in case the two houses cannot sepa- 
rately concur in a choice. 5 

The small number and long duration of the senate, were 
intended to render them a safe-guard against the influence 
of those paroxysms of heat and passion which prevail oc- 
casionally in the most enlightened communities, and enter 
into the deliberations of popular assemblies. 6 A disposi- 
tion to multiply and change laws, upon the spur of the 
occasion, and to be making constant and restless experi- 
ments with the statute code, seems to be the natural dis- 
ease of all such bodies. 7 In order, therefore, to counter- 

1 1 Kent's Com. * 225. 

2 Id. Journals of Congress, Vol. in. p. 416. 

3 1 Kent's Com. 225 ; The Federalist, No. 62. 

4 Rawle on Const, p. 37. 

5 Seel Kent's Com. * 226. 
6 1 Kent's Com. * 226. 

' Id. * 227. 



OF THE UNITED STATES. 281 

act so dangerous a propensity, and to maintain a due por- 
tion of confidence in the government, and to insure its 
safety and character at home and abroad, it is requisite 
that another body of men, coming likewise from the peo- 
ple, and equally responsible for their conduct, but resting 
on a more permanent basis, and constituted with stronger 
inducements to moderation in debate, and to tenacity of 
purpose, should be placed as a check upon the intemper- 
ance of the more popular department. 1 

The qualifications required for senators, 2 as distinguished g 199. Q ua i- 
from those of representatives, consist in a more advanced ifications of 
age, and a longer period of citizenship. A senator must senators - 
be thirty years of age, while a representative must be 
twenty -five ) and the former must have been a citizen 
nine years f while seven years only are required for the 
latter. The propriety of these distinctions, is also ex- 
plained by the nature of the senatorial trust ; which, re- 
quiring greater extent of information, and stability of 
character, requires, at the same time, that the senator 
should have reached a period of life most likely to supply 
these advantages; and which, participating immediately 
in transactions with foreign nations, ought to be exercised 
by none who are not thoroughly weaned from the pre- 
possessions and habits incident to foreign birth and educa- 
tion. 4 The term of nine years appears to be a prudent 
mediocrity between a total exclusion of adopted citizens, 
whose merit and talents may claim a share in the public 
confidence, and an indiscriminate and hasty admission of 
them, which might create a channel for foreign influence 
on the federal councils. 5 

What was formerly remarked in speaking of the two 
branches of the state legislatures, holds equally true of ers of ' eacll 

1 Id. The Federalist, No. 62. house > P rivil " 

* Const. U. S. Art. 1, \ 3. e S es of mem ' 
3 Which however seems not to have been regarded in the case of the s> 

-negro senator who succeeded to the seat of Mr. Jefferson Davis. 

* The Federalist, No. 62, p. 284. 
■ 5 Id. 



282 POLITICAL AND CONSTITUTIONAL LAW 

the two branches of congress. Each is invested with all 
the powers essential to a legislative body, except that the 
concurrence of both is necessary in the enactment of laws. 
Each chooses its own officers, except that the vice-presi- 
dent of the United States, when not absent nor exercising 
the office of president of the United States, is president of 
the senate, but has no vote unless they be equally divided. 1 
Each is the judge of the elections, returns, and qualifica- 
tions, of its own members; and a majority of each consti- 
tutes a quorum to do business ; but a smaller number may 
adjourn from day to day, and may be authorized to com- 
pel the attendence of absent members, in such manner, 
and under such penalties, as each house may provide. 2 
Each house may also determine the rules of its proceed- 
ings, punish its members for disorderly behavior, and, 
with the concurrence of two-thirds, expel a member. 3 Each 
is directed to keep a journal of its proceedings, and from 
time to time, to publish the same, excepting such parts as. 
may in their judgment require secrecy; and to enter on 
the journal the yeas and nays of the members, on any 
question, at the desire of one-fifth of those present.'* 
Neither can adjourn, during the session of congress, with- 
out the consent of the other, for more than three days; 
nor to any other place than that in which the two bodies 
shall be sitting. 5 The members of both houses are enti- 
tled to receive a compensation for their services, to be 
ascertained by law and paid out of the treasury of the 
United States : they are in all cases, except treason, felony,, 
and breach of the peace, privileged from arrest during 
their attendance at the session of their respective houses,, 
and in going to and returning from the same ; and for any 
speech or debate in either house, they are not to be ques- 
tioned in any other place. 6 

1 Const. U. S., Art. I, \\ 2, 3. 

2 Const. U. S., Art. I, \ 5. 

3 Id. 
*Id. 
s Id. 

6 Id. a 6. 



OF THE UNITED STATES. 283 

Some incapacities are also incident to members of con- 
gress. No senator or representative may, during the time 
for which he was elected, be appointed to any civil office 
under the authority of the United States, which shall have 
been created, or the emoluments whereof shall have been 
increased, during such time; and, as we have seen, no 
person holding any office under the United States, may be 
a member of either house during his continuance in office; 1 
or may, without the consent of congress, accept of any 
present, emolument, office, or title, of any kind whatever, 
from any king, prince, or foreign state. 2 

Congress is directed to assemble at least once in every 
year; and such meeting is to be on the first Monday in 
December, unless by law a different day for such meeting 
be appointed. 3 



{2gc) OF THE NATURE AND EXTENT OF THE LEGISLA- 
TIVE POWERS OF CONGRESS. 

The federal constitution, specifying and enumerating « 2 oi Pow- 
the powers of congress, declares and says: 4 — Congress ers of congress 
shall have power — specific and 

To lay and collect taxes, duties, imposts and excises, to enum erated. 
pay the debts and provide for the common defence and 
general welfare of the United States ; but all duties, im- 
posts and excises shall be uniform throughout the United 
States : 

To borrow money on the credit of the United States : 

To regulate commerce with foreign nations, and among 
the several states, and with the Indian tribes : 

To establish a uniform rule of naturalization and uni- 
form laws on the subject of bankruptcies throughout the 
United States : 

1 Const. U. S. Art. i, \ 6. 

2 Id. §9. 

3 Id. 14, 

* Art. i, a 8. 



284 POLITICAL AND CONSTITUTIONAL LAW 

To coin money, regulate the value thereof, and of for- 
eign coin, and fix the standard of weights and measures : 

To provide for the punishment of counterfeiting the se- 
curities and current coin of the United States : 

To establish post-offices and post-roads : 

To promote the progress of science and useful arts by 
securing for limited times to authors and inventors the 
exclusive right to their respective writings and discov- 
eries : 

To constitute tribunals inferior to the supreme court; 
to define and punish piracies and felonies committed on 
the high seas, and offences against the law of nations : 

To declare war, grant letters of marque and reprisal, 
and make rules concerning captures on land and water: 

To raise and support armies; but no appropriation of 
money to that use shall be for a longer term than two 
years : 

To provide and maintain a navy: 

To make rules for the government and regulation of the 
land and naval forces : 

To provide for calling forth the militia to execute the 
laws of the union, suppress insurrections and repel inva- 
sions: 

To provide for organizing, arming, and disciplining the 
militia, and for governing such part of them as may be 
employed in the service of the United States, reserving to 
the states respectively, the appointment of the officers, and 
the authority of training the militia according to the dis- 
cipline prescribed by congress : 

To exercise exclusive legislation in all cases whatsoever 
over such district (not exceeding ten miles square) as may, 
by cession of particular states and the acceptance of con- 
gress, become the seat of the government of the United 
States, and to exercise like authority over all places pur- 
chased by the consent of the legislature of the state in 
which the same shall be, for the erection of forts, maga- 
zines, arsenals, dockyards and other needful buildings; and 

To make all laws which shall be necessary and proper 
for carrying into execution the foregoing powers, and all 



OF THE UNITED STATES. 285 

other powers vested by this constitution in the government 
of the United States, or in any department or officer thereof. 

The first question, which naturally here presents itself, \ 202. Ob- 
is, what was the object of this specification and enumeration ject of such 
of the powers of congress ? Nothing of the kind had ever s P ecificatlon 
appeared in the state constitutions. The delegation of t - 
power to the state legislatures, had always been general; 
to make laws at their own discretion, except in certain cases 
expressly excepted by the state constitutions. 1 The delega- 
tion of power to the federal legislature, is precisely of the 
opposite character ; to legislate in certain enumerated cases, 
and not in any others. Why the general commission on 
the one hand, and the special commission on the other ? 
The reason of the difference is obvious, in the different 
ends to be attained. The one great purpose of a state leg- 
islature, is to make just laws for the regulation of such 
matters as are of common and equal importance to all the 
citizens of the state ; — in other words, for the complete 
regulation of the internal government and police of the 
state. The principal end of a federal legislature, on the 
other hand, is not to make laws for the government of in- 
dividuals in their relations to each other as citizens of a 
state, but to make laws concerning affairs of common and 
equal importance to all the states as members of the union 2 
An enumeration of all the cases in which legislation might 
become proper for a state legislature, would have been 
exceedingly difficult, even had the jealousy of state author- 
ity been such as to require it. An enumeration of the 
powers of congress, however, was not only imperatively 
demanded, but successfully made. The necessity of fixing 
a boundary line between state and federal authority, was, 
as we have seen, clearly perceived and acknowledged by 
the framers of the federal constitution. i It was easy to 
discover a proper and satifactory principle on the subject. 
"Whatever object of government is confined in its operation 
and effects, within the bounds of a particular state, should 
be considered as belonging to the government of that state: 

1 See Form of State Constitution, p 89, ante. 2 Page 200. 



286 POLITICAL AND CONSTITUTIONAL LAW 

whatever object of government extends in its operation or 
effect, beyond the bounds of a particular state, should be 
•considered as belonging to the government of the United 
States. 1 But though this principle be sound and satisfac- 
tory, its application to particular cases would be accompa- 
nied with much difficulty, because, in its application, room 
must be left for great discretionary latitude of construction of 
the principle. In order to lessen or remove the difficulty, 
arising from discretionary construction on this subject, an 
enumeration of particular instances, in which the application 
of the principle ought to take place, was attempted with 
much industry and care.' 2 Such, then, was the reason, for 
the specification and enumeration of the powers of con- 
gress. i This specification of particulars evidently excludes 
all pretention to a general legislative authority; because, an 
affirmative grant of special powers would be absurd, as 
well as useless, if a general authority were intended/ 3 It 
is therefore clear, that congress can claim no powers but 
such as are actually granted to it by the federal constitu- 
tion, and that the powers actually granted can be such only 
as are expressly given or given by necessary implication. 4 

\ 203. Lim- In this connection, we should also consider those clauses 
itations of of the constitution which expressly restrain and limit the 
power. powers of congress. Such are the following : — 5 

The privilege of the writ of habeas corpus shall not be 

1 Even Pomeroy, the prince of the imperialists, admits this principle. 
He says (Constitutional Law, \ 213), 'In regard to matters purely local, 
and which do not and cannot have a national aspect or influence, it has 
been the policy of the United States not to interfere with the separate 
states. The constitution was framed upon this idea. The people, as the 
source of all power, gave to their central government exclusive control 
over all subjects which are national and imperial, and to the separate 
states a control over all subjects which are local. I deem this policy as 
essential as is its counterpart, that the several states shall not interfere 
with the nation in the administration of its appropriate functions.' 

2 See Judge "Wilson's account of the difficulties experienced by the 
convention. Elliot's Debates, Vol. n, p. 418 ; ante g 112. 

5 The Federalist, No. 83, pp. 381-382. Hamilton. 
* Justice Story, 1 Wheat. 326. 3 Pet. Cond. 557, 

6 Const. U. S. Art. I, \ 9. 



OF THE UNITED STATES. 287 

suspended, unless when, in eases of rebellion or invasion, 
the public safety may require it. 

No bill of attainder, or ex post facto law, shall be passed. 

No capitation or other direct tax shall be laid, unless in 
proportion to the census or enumeration herein before 
directed to be taken. 

No tax or duty shall be laid on articles exported from 
any state. No preference shall be given by any regula- 
tion of commerce or revenue to the ports of one state over 
those of another : nor shall vessels bound to or from one 
state be obliged to enter, clear, or pay duties in another. 

No money shall be drawn from the treasury but in con- 
sequence of appropriations made by law; and a regular 
statement and account of the receipts and expenditures of 
all public money, shall be published from time to time. 

No title of nobility shall be granted by the United 
States, and no person holding any office of profit or trust 
under them shall, without the consent of congress, accept 
of any present, emolument, office or title of any kind what- 
ever, from any king, prince or foreign state. 

To these should be added the first ten amendments to g 204. Fur- 
the constitution, 1 expressly designed to limit the powers ther restrio 
of the several departments of the federal government, tions - 
though erroneously imagined by some to also extend to 
the governments of the several states. The doctrine is 
settled, that the limitations and restrictions of power con- 
tained in the federal constitution, other than such as are ex- 
pressly addressed to the states, operate only on the federal 
government and its several departments ; not on the states 
or the governments of the states. 2 Each state has estab- 
lished a constitution for itself, and, in that constitution, 
provided such limitations and restrictions on the powers 
of its particular government as its judgment dictated. 
The powers conferred on the federal government, were to 
be exercised by itself; and the limitations on power, in 
the instrument creating that government, if expressed in 

1 See ante, p. 151-153. 

2 See Barron v. The Mayor of Baltimore, 7 Pet. 243. 



288 POLITICAL AND CONSTITUTIONAL LAW 

general terms, are naturally and necessarily confined to 
that government. Those limitations are limitations of 
power granted in the instrument itself, not of distinct 
governments, framed by different persons, and for differ- 
ent purposes. They must therefore be understood as res- 
training the power of the general government, not as ap- 
plicable to the states. 1 So far, then, as the states do not 
infringe upon express provisions in the constitution of the 
United States, specially addressed to them, or upon those 
implied in the whole scope of that instrument, and in the 
grants of power to the general government, they may 
regulate their own internal economy as seems best to 
themselves. The United States are forbidden, either by 
the legislative, executive, or judicial department, to de- 
prive a person of any of the immunities and privileges 
guarded by the federal bill of rights. The states may, in 
respect to their own inhabitants, if consistent with their 
own organic laws, infringe upon them all. 2 

On every principle of rational construction, recognized 
by common sense, and by "judicial decisions, exclusive 
authority on any given subject is vested in the federal 
government in only three cases. 

1 . "When the power is expressly granted. 

2. When the power is vested in the general government, 
and prohibited to the states. 

3. When the exercise of a power by the states would 
be contradictory and repugnant to the exercise of a right- 
ful power by the general government. 3 

It must be recollected, that previous to the formation of 
the new constitution we were divided into independent 
states,, united for some purposes, but in most respects 
sovereign. 4 These states could exercise almost every leg- 

1 Barron v. The Mayor of Baltimore, 7 Pet. 243. Marshall, C. J. 

2 Porneroy's Constitutional Law, \\ 232-234, and cases there cited and 
considered. 

3 See The Federalist, No. 32 ; Sturgis v. Crowninshield, 4 Wheat. 122, 
193, 198 ; Gibbons v. Ogden, 9 Wheat. 1 ; Houston v. Moore, 6 Wheat. 
48. See also ante, \ 121. 

4 I am using the language of Chief Justice Marshall ; and I appre- 
hend that in speaking of the states, he generally meant the state gov- 
ernments. See ante, \ 131 and notes. 



OF THE UNITED STATES. 289 

islative power ; and amongst others, that of passing bank- 
rupt laws. When the American people created a national 
legislature with certain enumerated powers, it was neither 
necessary nor proper to define the powers retained by the 
states. These powers proceed, not from the people of Amer- 
ica^ but/rom the people of the several states ; and remain as 
they were before the adoption of the constitution, except 
so far as they may be abridged by that instrument. 1 

Let us now briefly examine the principal powers which g 205. The 
are actually vested in the federal legislature, either by ex- taxing power. 
press grant, or by unavoidable implication. 

The first of the enumerated powers of congress, is the 
power ' to lay and collect taxes, duties, imposts and ex- 
cises, to pay the debts and provide for the common de- 
fence and general welfare of the United States/ 2 

In view of the several provisions relating to this subject, 
I shall briefly consider, first, What are the legitimate pur- 
poses for which taxes may be laid by congress j secondly, 
What rules are to govern congressional legislation on the 
subject of taxes; and thirdly, What is the relation of fed- 
eral and state taxation. 

(1) What are the legitimate purposes for which taxes may \ 206 - ?ur_ 
be laid by congress ? The purposes expressed in the grant, poses 
are 'to pay the debts and provide for the common defence 
and general welfare of the United States/ If, however, 
the object or purpose of the particular enumeration of 
the powers of congress be kept out of view, a question 
may arise as to whether the clause conferring the power is or 
is not a grant of two distinct and several powers ; namely, 
a special power 'to lay and collect taxes, duties/ etc., and 
a general power ' to pay the debts, and provide for the com- 
mon defence and general welfare of the United States/ But 
the purpose of the particular enumeration being, as we 
have seen, to limit all powers to ascertained objects and 
prevent the possibility of their enlargement by construc- 

1 Marshall, C. J , Sturgis v. Crowninshield, 4 Wheat. 192-193. 

2 Const. IT. S. Art. 1, \ 8. On this power of taxation, see The Fed- 
eralist, Nos. 30 to 37. 

S 



290 POLITICAL AND CONSTITUTIONAL LAW 

tion or implication, all general powers are precluded; 1 and 
instead of reading the latter part of the clause as a dele- 
gation of power unlimited and all-comprehensive, we are 
to read it as a specification of those general objects for the 
attainment of which the particularly enumerated powers 
are granted. 2 The true meaning of the grant is rendered 
apparent, without adding or omitting a word, by reading 
it thus : l To pay the debts and provide for the common 
defence and general welfare of the United States, congress 
shall have power to lay and collect taxes, duties, imposts 
and excises. 3 It is nevertheless certain that were congress 
unrestricted in the choice of the measures by which debts 
should be incurred, the common defence undertaken, or 
the general welfare pursued, the designation of the ob- 
jects or purposes for which the power of taxing is given, 
would be wholly insignificant. But every measure which 
congress may adopt with a view to the common defence, 
the general welfare, or any of the great objects for which 
the federal government was established, must always be 
such as is proper and necessary to the execution of some 
one of those powers which are ascertained and enumerated 
by the constitution itself as being conferred upon the fed- 
eral government. Otherwise, the doctrine might once and 
for all be laid down, that the power of congress is general, 
discretionary, and unlimited. For 'common defence and 
general welfare are terms of the broadest generality; and 
within them can be easily included all the objects for which 
governments may legitimately provide/ 4 To say that 
congress may adopt every measure considered by it as 
conducive to the ''common defence' or the 'general wel- 
fare/ is to totally abandon the constitution and every 
principle of constitutional government. 

1 Ante, p. 202. 

2 See The Federalist, No. 41, p. 192. 

3 'The revenue of the United States is intended by the;constitution, to 
pay the debts, and provide for the common defence and general welfare 
•of the United States ; to be expended, in particulars, in carcying into 
effect the laws made to execute the powers vested by the constitution in 
the government of the United States.' 16 Pet. 448, 449. 

4 See Pomeroy's Constitutional Law, \\ 273, 274. 



OF THE UNITED STATES. 291 

(2) What rules are to govern congressional legislation \ 207. Rules 
on the subject of taxes? 'All duties, imposts, and excises, controlling 
shall be uniform throughout the United States/ 1 ' Direct taxation - 
taxes shall be apportioned among the several states ac- 
cording to their respective numbers/ 2 l No capitation, or 
other direct tax, shall be laid, unless in proportion to the cen- 
sus or enumeration herein before directed to be taken/ 3 
4 ~No tax or duty shall be laid on articles exported from 
any state. !N"o preference shall be given by any regu- 
lation of commerce or revenue to the ports of one state 
over those of another : nor shall vessels bound to or from 
one state, be obliged to enter, clear, or pay duties in 
another/ 4 These are the provisions of the constitution 
which must govern congressional legislation on the sub- 
ject of taxes. The rule of uniformity, then, must be ob- 
served in laying l all duties, imposts, and excises : ' while the 
rule of apportionment among the several states, according 
to their respective numbers, as ascertained by an actual 
enumeration thereof within every ten years, must control 
all 'direct' taxation. 

It is therefore necessary to distinguish between the dif- \ 208. Di- 
ferent kinds of taxes. c All duties, imposts, and excises/ rect and indi- 
are taxes j not direct, but indirect; and these include near- rect taxes - 
ly all the subjects of ordinary revenue. A capitation, poll, 
or personal tax, is a direct tax. 

All taxes are separated into two classes, — the direct, and 
the indirect. Direct taxes include those assessed upon land, 
and those which pass under the denomination of capita- 
tion or poll, and probably include no others. Indirect 
taxes would then embrace all the remaining species, and 
would be co-extensive with duties, imposts, and excises. 5 
The rule of apportionment, applies to the former; the rule 
of uniformity , to the latter. 6 

1 Const. XL S. Art. I, § 8. 

2 Id. \ 2. 3 Id# g 9. 4 Id# 

5 Pomeroy's Const. Law, \ Til. 

6 By an act of congress, of 5th June, 1794, a tax of ten dollars was 
laid upon carriages for the conveyance of persons ; and the question was 



292 POLITICAL AND CONSTITUTIONAL LAW 

The fundamental principle of just taxation, is, that taxes, 
ought to be equally borne by all alike in proportion to 
their ability to bear them. This is a principle of natural' 
justice. A poll tax, as such, can never be just: because, it 
is a tax upon persons without respect to their ability to 
pay it. Of a like character are taxes on trades and pro- 
fessions. The trade or profession of one may annually 
amount to a thousand, and that of another to fifty thou- 
sand. Yet both must pay the same tax. Taxes on indus- 
try, art or skill, or anything else but the tangible and 
available property owned by a man, are not only impoli- 
tic, but positively unjust. The policy of licenses, is at all 
times questionable. If a particular business should be per- 
mitted, it ought to be open to all, subject to just regula- 
tions. If it should not be permitted, it ought not to be 
licensed. 

§ 209. Pow- ^r ru i e j s prescribed which limits the amount of taxes 
er ° a * ln S to be raised. The power of taxing the people and their 
property, being essential to the existence of government, 
may be legitimately exercised on the objects to which it 
is applicable, to the utmost extent to which the govern- 
ment may choose to carry it. The only security against 
the abuse of this power, is found in the structure of the 
government itself. In imposing a tax, the legislature acts 
upon its constituents. This is in general a sufficient secur- 
ity against erroneous and oppressive taxation. The people 
give to their government a right of taxing themselves and 
their property ) and, as the exigencies of the government 
cannot be limited, they prescribe no limits to the exercise 
of this right ; resting confidently on the interest of the 

raised, whether such tax was or was not a direct tax, subject to the rule 
of apportionment prescribed by the constitution. This question coming 
before the U. S. Supreme Court for decision, that court decided that 
such tax was not a direct tax, and that the rule of uniformity had been, 
properly applied. Hylton v. The United States, 3 Dall. Rep. 171. 
See 1 Kent's Com. *225, et seq. 



OF THE UNITED STATES. 293 

legislator, and on the influence of the constituents over 
their representative, to guard them against its abuse. 1 

Some things there are, however, which, upon fundamen- \ 210. No 
tal principles of justice, ought to be wholly exempt from tax u P on J us " 
taxation, both state and federal. Such are all writs which lce " 
are issuable from the courts as instruments of justice. 
Taxes on litigation are means of discouraging it, which 
some approve; but it ought not to be overlooked, that 
they are means of preventing the pursuit of justice ; they 
are also means of denying it ; especially to those who are 
most in need of it; and to deny it to any, or to hinder the 
pursuit, is not in accordance with the spirit of our consti- 
tutions. To tax the necessary instruments of justice, as 
though they were property, was never the policy of the 
states; but a part of the recent congressional policy of 
invading the rights of the states. To the honor of our 
people be it remembered, that that policy has been success- 
fully resisted, and, we hope, forever ended. 2 It may even 
be doubted that such instruments could be taxed by the 
state legislatures, without an infraction of their Bills of 
Bights? If the right to tax them exists, it may be carried 
so far as to amount to an absolute denial of justice. ' The 
right to tax implies the right to destroy/ It may certainly 
be affirmed, as an inviolable principle of our political sys- 
tem, that no constitutional power can exist in congress, or 
in any of the branches of the federal government, to con- 
trol or hinder the process, methods or means of adminis- 
tering justice in the courts of a state. As well may con- 
gress usurp the control of the whole internal government 
of a state. The powers of state officials, are the powers of 

1 Marshall, C. J. in McCulloch v. The State of Maryland, 4 Wheat. 
316, 428. Congress may tax the unrepresented District of Columbia. 
Loughborough v. Blake, 5 Wheat. 317. The power extends equally to 
all places within the jurisdiction of the government. 1 Kent's Com. 
* 256. 

2 The imposition of stamp duty on legal process is unconstitutional. 
Pifleld v. Close, 2 Jennison, (15 Michigan), 505. See Warren v. Paul, 
22 Indiana, 276. 

3 See Form of State Constitution, at No. 22, ante, p. 84. 



294 POLITICAL AND CONSTITUTIONAL LAW 

the sovereign, that is, of 'the people' or body of electors- 
composing the state. The process of the courts, the entire 
administration of justice, is in the name, and by the author- 
ity, of this absolute sovereign. A judge of any state court* 
therefore, who should permit the process of his court to be 
taxed, or the administration of justice therein to be con- 
trolled or affected, by any authority other than that of the 
state which invests him with the judicial office, would be 
guilty of a gross violation of his trust — would be guilty of 
treason against his sovereign. 1 

I 211. Be- (3) What, finally, is the relation of federal and state tax- 
ation of fed- ation ? The clauses of the federal constitution directly 
eral and state a ff ec ting the power of state taxation, are the following : 
1 No state shall, without the consent of congress, lay any 
imposts or duties on imports or exports, except what may 
be absolutely necessary for executing its inspection laws; 
and the net produce of all duties and imposts, laid by any 
state on imports or exports, shall be for the use of the 
treasury of the United States; and all such laws shall be 
subject to the revision and control of congress. No state 
shall, without the consent of congress, lay any duty of 
tonnage.' 2 And 'No tax or duty shall be laid on articles 
exported from any state/ 3 This last clause applies equally 
to both the federal and state legislatures. Hence results 
an exclusive power in congress to lay duties on imports: 4 * 
but neither congress nor the state legislatures can lay any 
tax or duty on exports. If 'any duty of tonnage,' or ' du- 
ties on imports,' be laid by a state, the laws of the state- 
concerning the same must be subject to the revision and 
control, and receive the assent of, congress. But the 
power of imposing taxes on all articles other than exports 

1 The efforts of Pomeroy (Const. Law, \\ 291-293) to defend the policy 
of congress in taxing ' papers used in the judicial proceedings of state 
courts,' all proceed upon the fallacy that the evidences of i-ight, and the 
means of its vindication, are themselves property. This is proved to be- 
the truth by the blindness that sees not the difference. \ 204, ante. 

2 Const. U. S. Art. I, § 10. 

3 Id. I 9. 

* The Federalist, No. 32, p. 140. 



OF THE UNITED STATES. 295 

and imports, is manifestly a concurrent and co-equal au- 
thority in the federal and state legislatures. 1 The individ- 
ual states should doubtless possess an independent and 
uncontrollable authority to raise their own revenues for 
the supply of their own wants. And with the sole excep- 
tion of duties on imports and exports, they retain that 
authority under the constitution, in the most absolute and 
unqualified sense ; and an attempt on the part of the fed- 
eral government to abridge them in the exercise of it, 
would be a violent assumption of power, unwarranted by 
any article or clause of its constitution. 2 ' There is plainly 
no expression in the grant of the taxing power to con- 
gress, which makes that power exclusive. There is no in- 
dependent clause or sentence which prohibits the states 
from exercising it. So far is this from being the case, that 
a plain and conclusive argument to the contrary is deduci- 
ble from the restraint laid upon the states in relation to 
duties on imports and exports. This restriction implies 
an admission, that if it were not inserted, the states would 
possess the power it excludes; and it implies a further ad- 
mission, that as to all other taxes, the authority of the 
states remains undiminished. It amounts to what lawyers 
call a negative pregnant ; there is a negation of one thing, 
and an affirmance of another; a negation of the authority 
of the states to impose taxes on imports and exports, and 
an affirmance of their authority to impose them on all 
other articles. It would be mere sophistry to argue that 
it was meant to exclude them absolutely from the imposi- 
tion of taxes of the former kind, and to leave them at 
liberty to lay others subject to the control of congress/ 5 

1 The Federalist, No. 32, p. 140. 

2 Id. 140. Hamilton. 

3 Id. p. 141. Hamilton. Those who maintain the imperial theory, 
constantly refer to the supremacy clause, upon this as upon other sub- 
jects. In relation to which, Hamilton says : 'If individuals enter into a 
state of society, the laws of that society must be the supreme regulator 
of their conduct. If a number of political societies enter into a larger 
political society, the laws which the latter may enact, pursuant to the 
powers entrusted to it by the constitution, must necessarily be supreme 
over those societies, and the individuals of whom they are composed. 



296 POLITICAL AND CONSTITUTIONAL LAW 

\ 212. Fed- It has been conceded, however, that from the operation 
eral instru- f this general authority remaining in the states, over all 

men & no ax- ^ e r ma tters of legitimate taxation, the necessary in- 
able by states. , & . . ' J 1 

struments and means of carrying on the government es- 
tablished by the general constitution, must, from the ne- 
cessity of the case, be considered exempt. For ' the right 
to tax, implies the right to destroy/ 1 

It is not denied that the power of taxation is to be con- 
currently exercised by the federal and state governments. 2 
The power of state taxation is to be measured by the ex- 
tent of state sovereignty; it extends to all subjects of 
state jurisdiction, to everything which exists or is intro- 
duced by state authority ; but it does not extend to those 
means which are employed by congress to carry into ex- 
ecution its constitutional powers. 3 This leaves to a state 
the command of all its resources, and the unimpaired 
power of taxing the people and property of the state. 
But it places beyond the reach of state power all those 
powers conferred On the federal government, and all those 
means which are given for the purpose of carrying those 
powers into execution. This principle relieves from clash- 

. . . . But it will not follow from this doctrine, that acts of the 
larger society, which are not pursuant to its constitutional powers, but 
which are invasions of the residuary authorities of the smaller societies, 
will become the supreme law of the land. These will be merely acts of 

usurpation, and will deserve to be treated as such Though 

a law, therefore, laying a tax for the use of the United States would be 
supreme in its nature, and could not legally be opposed or controlled ; 
yet a law abrogating or preventing the collection of a tax laid by the 
authority of a state, (unless upon imports and exports,) would not be 
the supreme law of the land, but an usurpation of a power not granted 

by the constitution The inference from the whole is, 

that the individual states, would, under the proposed constitution, re- 
tain an independent and uncontrollable authority to raise revenue to any 
extent of which they may stand in need, by every kind of taxation, ex- 
cept duties on imports and exports.' Id. pp. 145, 146. 

1 We applied this argument to the taxation of state instruments by 
congress. Consistency requires that we admit its validity here. It is 
here only, however, that Pomeroy and others, advocates of the Imperial 
scheme, admit its application. Consistency is no part of their doctrine. 

2 McCulloch v. The State of Maryland, 4 Wheat. 316. 

3 Id. 



OF THE UNITED STATES. 297 

ing sovereignty ; from interfering powers; from a repug- 
nancy between a right in one government to pull down 
and destroy what there is an acknowledged right in an- 
other to build up and preserve. There would be a plain 
repugnance in conferring on one government the power 
to control the constitutional measures of another, which 
other, with respect to those very measures, was declared 
to be supreme over that Avhich exerts the control. If the 
states might tax one instrument employed by the federal 
government in the execution of its powers, they might 
tax every other instrument. They might tax the mail ; 
they might tax the mint; they might tax the papers of 
the custom-house; they might tax judicial process; they 
might tax all the means employed by that government, to 
an excess which would defeat all its ends. 1 

Thus a bank of the United States, though having its „ 21 „ 
branches within the jurisdictions of the states, is not lia- 
ble to state taxation. 2 

Nor can a state tax be laid upon stock created and is- 
sued for loans made to the United States; since that would 
be taxing a measure or means of carrying on the federal 

1 McCulloch v. Maryland, 4 Wheat. 316 ; 1 Kent's Com. * 426. 

2 McCulloch v. State of Maryland, 4 Wheat. 316 ; Osborn v. Bank of 
the TJ. S., 9 Wheat. 738. In the first of these cases, the court was care- 
ful to declare, that its decision was to be received with the qualification, 
that the states were not deprived of any resources of taxation which 
they originally possessed ; that the restriction did not extend to a tax 
paid by the real property of the bank, in common with the real prop- 
erty within the state ; nor to a tax imposed upon the interest which the 
•citizens of Maryland might hold in that institution, in common with 
other property of the same description throughout the state. In the 
last, it was admitted, that if the bank was a mere private corporation, 
■engaged in its own business and with its own views, and that its great 
>end and principal object were private trade and private profit, it would 
be subject to the taxing power of the state, just as any individual would 
be. But such was not the case. The bank was not created for its own 
sake or for private purposes. It has never been supposed that congress 
•could create such a corporation. It was not a private but a public cor- 
poration, an instrument necessary and proper for carrying into effect 
the powers vested by the constitution in the government of the United 
States. 



298 POLITICAL AND CONSTITUTIONAL LAW 

government. 1 The same may be said of all the evidences 
of the public debt, United States bonds and other securi- 
ties, of whatever character, and however held. 2 Neither 
may a state tax be laid upon the salaries of officers of the 
United States : such officers, of whatever character or 
capacity, being also necessary instruments to the due ad- 
ministration of the federal government, and their salaries 
the necessary means of securing their services. 3 The al- 
lowance to them, rests in the discretion of congress. The 
presumption is that the compensation given by law is no 
more than the services are worth, and only such in amount 
as will secure from the officer the diligent performance of 
his duties. The officers execute their offices for the public 
good. This implies their right of reaping from thence 
the recompense their services deserve ; without that re- 
compense being in any way lessened, except by the sov- 
ereign power from whom the officer derives his appoint- 
ment, or by another sovereign power to whom the first 
has delegated the right of taxation over all the objects of 

1 Weston v. City Council of Charleston, 2 Pet. 449. 

2 In the case of The Bank of Commerce v. The City of New York, 2 
Black, 620, a distinction was taken between a tax on United States 
stock eo nomine, and a tax on the aggregate amount of capital owned by 
a bank, however invested in United States securities or otherwise. This 
distinction, sustained by the New York Court of Appeals, — see The 
People v. The Commissioners of Taxes, 9 Smith (23 N. Y.), 192, 
— was overruled by the Supreme Court of the United States, which 
held, that stock of the United States is not subject to taxation under 
state laws ; that a state law for that purpose is unconstitutional, whether 
it imposes a tax on the evidences of public debt by name, or includes 
them in the aggregate of the tax-payer's propertj^, to be valued like the 
rest, at its worth ; that the portion of the capital of a state bank which it 
has invested in United States stocks, bonds, and other securities, is not lia- 
ble to taxation by the state ; that the taxing power, so far as it is reserved 
to the states and used by them within constitutional limits, cannot be 
controlled or restrained by the federal judiciary, the prudence of its ex- 
ercise not being a judicial question ; that a state tax on the loans of 
the general government, is a restriction upon the constitutional power 
of the United States to borrow money ; and if the state had such a right,, 
being in its nature unlimited, it might be so used as to defeat the federal 
power altogether. See Bank Tax Cases, 2 Wallace, 200. 

3 Dobbins v. The Commissioners of Erie County, 16 Pet. 435. 



OF THE UNITED STATES. 299 

taxation, in common with itself, for the benefit of both. 
And no diminution in the recompense of an officer is just 
and lawful, unless it be prospective, or by way of taxation 
by the sovereignty who has a power to impose it, and it 
is intended to bear equally upon all according to their 
estate. 1 

On the other hand, a state tax on dividends arising from 
stock, held in a bank of the United States by a citizen of 
the state, has been adjudged constitutional. The states 
are not deprived of their right of taxation, except so far 
as it concerns the means, measures and instruments, neces- 
sary and proper for the execution of the powers vested by 
the federal constitution in the general government. This 
is the ruling principle of all the cases. The restriction 
upon state taxation does not extend to a tax to be paid by 
the real estate of a United States bank, in common with 
other real property of the same description within the 
jurisdiction of the state; nor does it extend to a tax on the 
interest that citizens of the state may hold in such bank, 
in common with other property of the same description 
throughout the state. 3 A contractor, says Chief Justice 
Marshall, for supplying a military post with provisions, 
cannot be restrained from making purchases within every 
state, or from transporting them to any place at which the 
troops are stationed, nor could he be fined or taxed for 
doing so. But the property of the contractor may be 
taxed as the property of other citizens. 4 Upon the same 
principle, though the salaries of United States officers may 
not be taxed by a state, yet their persons and property 
may, in common with other persons and property, with- 
in the jurisdiction of the state; 5 and though a bank 

^Dobbins v. Commissioners, 16 Pet. 449. 
. 2 Berney v. Tax Collector, 2 Bailey's (S. C.) Eep. 654. 

3 See the case of McCulloch v. State of Maryland, 4 Wheat. 316. The 
decision in which it was declared by the court, must be received with, 
these qualifications. 

4 Osborn v. U. S. Bank, 9 Wheat. 867. 

5 See the case of Melcher v. The City of Boston, 9 Metcalf, 73. 



214. 



300 POLITICAL AND CONSTITUTIONAL LAW 

of the United States may not be taxed, yet individual in- 
terests therein are not exempt. 1 

The principle which runs through the subject of taxa- 
tion, as through every other subject of concurrent juris- 
diction in the federal and state governments, is that of a 
harmonious co-operation of sovereign powers within their 
respective spheres, which denies the right of one govern- 
ment to interfere with the measures, means, or instru- 
ments, necessary to the constitutional administration of 
another, and which prohibits the one from attempting to 
pull down and destroy what there is an acknowledged 
right in the other to build up and preserve. 2 The power 
of taxation is an obvious incident of sovereignty, and is 
co-extensive with that to which it is an incident. 3 These 
principles apply no less to the state than to the federal 
government, and no less to the federal than to the state 
government. To their operation, there should be no ex- 
ception, and none can arise unless from a partisan spirit. 

Thus much concerning the taxing power of the federal 
legislature. 

\ 215. Pow- The next in the order of the enumerated powers of con- 
<er to regulate gress, is the power ' To borrow money on the credit of the 
•commerce. United States' ^ This speaks for itself; it is necessarily 
vested in the discretion of congress; and therefore, with- 
out uselessly pausing to comment upon it, we pass to the 
next; namely, the power ' To regulate commerce with foreign 
nations, and among the several states, and with the Indian 
tribes' 5 

One of the principal objects of vesting this power in 
congress, was the relief of the states which should import 
and export through other states, from the improper con- 

1 A state may lay a tax on the shareholders. City of Utica v. Chur- 
chill, 6 Tiffany, (33 N. Y.) 161, same case, (by name Van' Allen v. 
The Assessors) 3 "Wallace, 573 ; The People v. Commissioners of Taxes, 
8 Tiffany (35 N. Y.), 423, same case, 4 Wallace, 244. 

2 Ante. \ 212. 

3 Per Marshall, Ch. J., in McCulloch v. Maryland, ut sup. 
* Const. TJ. S. Art. 1, § 8. 

5 Id. 



OF THE UNITED STATES. 301 

tributions that might be levied on them by the latter. 
Were these at liberty even to regulate trade between state 
and state, it was clearly foreseen, that ways would be 
found out to load the articles of import and export, during 
the passage through their jurisdiction, with duties which 
would fall on the makers of the latter, and the consumers 
of the former. 1 It was therefore proper, that the power 
to regulate commerce, both inter-state and foreign, should 
be conferred upon the federal legislature. There is no 
analogy between the power of taxation and the power to 
regulate commerce. Congress has general power to tax ; 
and yet it is universally admitted that the states may also 
tax. The reason is, that the constitution recognizes the 
states as bodies politic; and to their very existence as 
such, the power to lay and collect taxes is absolutely es- 
sential ; while the power to regulate commerce is not. 2 No 
argument can therefore be drawn from the conceded con- 
current power of the federal and state legislatures to ex- 
ercise the function of taxation, in favor of a like concurrent 
jurisdiction over commerce. So far as congress has power 
to regulate commerce, that power is doubtless exclusive. 3 

But the power of Congress over this subject, is very g 216. Ex- 
properly restricted to that commerce which concerns more tends not to 
states than one. It does not embrace that commerce which internal __ af-^ 
is completely internal, which is carried on between man fairsofastate 
and man in a state, or between different parts of the same 
state, and which does not extend to nor affect other states.* 
Nor does it extend to inspection laws. The object of in- 
spection laws is to improve the quality of articles, to fit 
them for exportation, or, it may be, for domestic use. 
They act upon a subject before it becomes an article of 
foreign commerce, or of commerce among the states, and 
prepare it for that purpose. They form a portion of that 
immense mass of legislation which embraces everything 

1 The Federalist, No. 42, p. 196. 

2 Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheat. 197. 

3 Gibbons v. Ogden, 9 Wheat. 1. 

4 Id. See also 1 Kent's Com. * 438. 



302 POLITICAL AND CONSTITUTIONAL LAW 

within the territory of a state not surrendered to the gen- 
eral government; all which can be most advantageously 
exercised by the states themselves. Inspection laws, quar- 
antine laws, health laws of every description, as well as 
laws for regulating the internal commerce of a state, and 
those which respect turnpike roads, ferries, etc., are com- 
ponent parts of this mass. ~No direct general power over 
these objects is granted to congress; and, consequently, 
they remain subject to state legislation. If the legislative 
power of the union can reach them, it must be where the 
power is expressly given for a special purpose, or is clearly 
incidental to some power which is expressly given. 1 

..$ 217. Three general propositions, which relate to this subject 

as well as to many others, are regarded as established by 
judicial decision. 1. The delegation of a power to con- 
gress, the non-exercise of which, or legislation in virtue of 
which, has left a particular subject or class of subjects un- 
affected, does not exclude the states from passing laws re- 
lating to that subject or class- of subjects. 2 2. General legis- 
lation by congress in pursuance of a delegated power, de- 
signed to regulate matters of equal and common importance 
to all the states, does not oust a state of its jurisdiction con- 
cerning matters of immediate and peculiar importance to its 
own internal welfare, and which are not the direct objects of 
such general congressional legislation ; although the laws 
of the state abridge private rights conferred by the laws 
which congress has enacted. 3 3. Such general legislation 
by congress, however, excludes and annuls all state legis- 
lation concerning those general objects which the federal 
legislation had directly in view. 4 

Thus congress at an early day, in pursuance of the 
power now under consideration, enacted laws for the regu- 
lation of the coasting trade and the enrolment and licens- 
ing of vessels engaged therein, and thereby conferred, 

1 Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheat. 203. 

2 Wilson v. Blackbird Creek Co., 2 Pet 245. 

3 Id. 

4 Gibbons v. Ogden, 9 Wheat. 1. These propositions I take to be 
fully sustained by the subsequent decisions hereinafter referred to. 



OF THE UNITED STATES. 



303 



upon vessels duly licensed, a right to navigate the navi- 
gable waters of the states. One of the states, however, 
with a view to encourage the reclaiming and improving of 
low and marshy lands within its jurisdiction, incorporated 
a company with power to construct a dam across a navi- 
gable creek connecting with the ocean. The owner of a 
vessel duly licensed, broke and injured the dam constructed 
by the company, asserting his right to navigate the stream 
by virtue of his license and enrolment agreeably to the act 
of congress. The question of the validity of the state 
legislation abridging the rights conferred by the act of 
congress, was thus presented; and being carried to the 
■Supreme C ourt of the United States, the state legislation 
was fully sustained. 1 The same high court, on a previous 
occasion, considering the question of the constitutionality 
of state legislation which granted to certain persons a right 
to the exclusive navigation of its waters, had adjudged the 
state laws void, so far as they prohibited vessels, duly 
licensed under the laws of congress, from navigating the 
waters of the state. 2 These two cases, I regard as sustain- 
ing the general propositions above laid down. 



The decision in relation to the stoppage of the creek, 
proceeded on the grounds, that measures calculated to 
enhance the value of property on the banks of navigable 
streams, and to probably improve the health of the inhab- 
itants, are, so far as they do not conflict with the constitu- 
tional powers of the general government, within those pow- 
ers which are reserved to the states; that, although the 
measure authorized by the state may abridge the rights of 
those who have been accustomed to use such streams, yet 
this abridgement, unless it comes in conflict with the con- 
stitution or a law of the United States, is an affair between 
the state and its citizens, of which the federal courts can 
take no cognizance; that congress, in pursuance of the 
power to regulate commerce, had passed no act the im- 
jnediate object of which was to control state legislation 

1 Wilson v. Blackbird Creek Co., 2 Pet. 245. 

2 Gibbons v. Ogden, 9 Wheat. 1. 



| 218. 



304 POLITICAL AND CONSTITUTIONAL LAW 

over such streams; and that the act of the state empower- 
ing the company to place a dam across the creek, was not 
repugnant to the power to regulate commerce in its dor- 
mant state. 1 The decision respecting the grant by a state 
of the exclusive right to navigate its waters, was placed on 
other grounds. Congress, in pursuance of the power to 
regulate commerce, had enacted laws, equally affecting the 
interests of all the states, and securing, and intending to 
secure, equal privileges of navigation, with which the grant 
by the state was in direct and open conflict. No state can 
pass laws interfering with these privileges. 2 

I 219. The The power * to regulate commerce, though limited by the 

rule of consti- words, ' with foreign nations, and among the several states, 

tutional con- an( j w ith the Indian tribes/ is so general in terms, that it 

s rue ion ne- - g difficult ^ determine its extent by reference merely to 

cessarily in- . _ „ . , . . 

voked ^ ne language oi the grant; and yet its importance can 

only be determined when once its extent has been ascer- 
tained. A rule or principle of construction must therefore 
be found outside of the grant. Where shall we find that 
rule or principle of construction ? In the nature and ob- 
jects of the instrument containing the grant. True; but 
not all are of one opinion concerning the nature and ob- 
jects of that instrument. Some regard the instrument as 
being in the nature of a statutory law prescribed by a 
power superior to the states — the power of 'the people of 
the United States ' as one political body ; although our rec- 
ords prove, as we have formerly shown, that no such po- 
litical body ever existed ; 3 that the only political bodies 
known in our system, are the several bodies of electors, 

1 See the opinion of the court, by Marshall, Ch. J., 2 Pet. 250. It is 
hardly to be supposed that the insignificance or importance of the stream 
was a ground of the decision : the stream in question being confessedly 
a navigable stream, communicating (indirectly) with the ocean, and the 
right of the licensed owner of the vessel to pursue his accustomed course 
in sailing up and down the same, being the only question before the 
court ; and the question of the relative importance of navigable streams, 
being, I imagine, not only a difficult one for a court to decide, but also 
wholly of extra-judicial cognizance. 

2 Sinnot v. Davenport, 22 How. U. S. 227. 3 See \ 204. 



OF THE UNITED STATES. 305 

being the several states. Others view the instrument as a 
federal compact between the states. The object of the in- 
strument, is conceived and held, by the one of these schools, 
to be the establishment of a government strictly national, 
that is, for the people of the whole country as composing 
a single nation or state ; by the other, to be the establish- 
ment of a government strictly federal, in the language of 
the preamble to the instrument, ' for the United States of 
America/ The powers of the general government are 
thus construed, by the one school, as co-extensive with the 
wants of the nation (as one political state), and as subject 
to such limitations only as are recognized by that govern- 
ment itself; by the other school, as measured and limited 
by the grants of power contained in the instrument, and 
as subject, finally, to the action of the states as the orig- 
inal fountains and sources of power. The principle of 
construction must therefore vary, according as the one 
or the other of these schools prevails. There also is, as 
we have seen, another theory; the advocates of which 
maintain, that though the instrument is a federal compact 
by and between the states, as co-equal members of the 
union, yet the object was, to form a common (national or 
federal) government, as to matters of common importance 
and equal interest to all the states, without any invasion 
of the internal right of self-government inherent in each; 
that, therefore, as to the enumerated powers confided to 
the general government, the rule of construction is, that 
1 whatever object of government is confined in its opera- 
tion and effects, within the bounds of a particular state, 
should be considered as belonging to the government of 
that state; and whatever object of government extends, 
in its operation or effects, beyond the bounds of a particu- 
lar state, should be considered as belonging to the govern- 
ment of the United States/ x This is the view which gov- 
erned the framers of the federal constitution, and which 
has prevailed with the ablest expounders of that instru- 
ment, with the Supreme Court of the United States, and 
generally with the people at large. It was, as we have 

1 Ante, I 112. 



306 POLITICAL AND CONSTITUTIONAL LAW 

seen, recognized and adopted by Chief Justice Marshall, 
and sanctioned by the court, in the first great case involv- 
ing the power to regulate commerce. It was never aban- 
doned by that great chief justice, nor by any but political 
partisans of the one or the other of the two extreme 
schools. 

I 220. Ex- In accordance with this view, the power of congress to 
tent of the regulate commerce, is restricted to that commerce which 
power. concerns more states than one ; it does not comprehend that 

commerce which is completely internal, which is carried 
on between man and man in a state, or between different 
parts of the same state, and which does not extend to nor 
aifect other states. 1 This is the key to the whole subject. 
If, therefore, it extends to places, to navigable rivers or 
streams, and to all the means and instruments of l com- 
merce with foreign nations and among the several states/ 
it extends to such of these objects only as are of general 
and equal interest to all the states, only to such as concern 
more states than one ; to such matters, in short, as leave to 
the people of each state, their internal right of self-govern- 
ment in all that peculiarly relates to themselves. True, 
the power of congress in this particular, cannot stop at the 
external boundary line of a state : it must stop, neverthe- 
less, at the very threshold of what peculiarly, exclusively 
and immediately concerns the welfare of the people of a 
particular state. 2 



I 221. State 
licenses. 



A state cannot, by way of regulating its internal com- 
merce, require importers of foreign goods by the bale or 
package, to take out a license and pay for the same : be- 
cause by doing so, it would contravene the provisions of 
the federal constitution, forbidding the states to lay duties 
on imports, and granting to congress the power to regu- 
late commerce. 3 But other restrictions such as a state may 

1 Marshall, Ch. J. in Gibbons v. Ogden, 9 Wheat. 193. 

2 Gilman v. Philadelphia, 3 Wallace, 713 ; Cooley v. Port Wardens, 12 
How. U. S. R. 299. 

3 Brown v. State of Maryland, 12 Wheat. 419. 



OF THE UNITED STATES. 



307 



State statute, regulations. 



-deem reasonable and proper for the regulation of its own 
internal commerce, it is at liberty to impose. After im- 
ported goods have passed from the hands of the wholesale 
importer into those of the domestic trader, they are liable 
to state taxation, the same as other property of the citi- 
zens of the state; 1 and non-importers dealing in imported 
articles, whether by wholesale or retail, may be required 
to have a state license, the same as if dealing in domestic 
goods. 2 

The control of matters involved in what is indefinitely * 2 20. In- 
and vaguely termed the internal police of a state, is by all ternal police 
conceded to the state legislatures. Thus a 
requiring that every master of a vessel arriving at one of 
the ports of the state from a foreign country, or from a 
port in another state, should, within twenty-four hours, 
make a written report of the name, age, and last place of 
settlement of every passenger, was held to be valid, on 
the ground that it was merely a regulation of the internal 
police of the state. The court laid down the following as 
1 impregnable positions: That a state has the same unde- 
niable, unlimited jurisdiction over all persons and things 
within its territorial limits, as any foreign nation, where 
that jurisdiction is not surrendered or restrained by the 
constitution of the United States; that, by virtue of this, 
it is not only the right, but the bounden and solemn duty 
of a state, to advance the safety, happiness, and prosperity 
of its people, and to provide for its general welfare, by 
any and every act of legislation which it may deem to be 
conducive to those ends, where the power over the par- 
ticular subject, or the manner of its exercise, is not sur- 
rendered or restrained in the manner just stated ; that all 
these powers which relate to merely municipal legislation, 
or what may, perhaps, more properly be called internal 
police, are not thus surrendered or restrained; and that, 
consequently, in relation to these, the authority of a state 
is complete, unqualified, and exclusive/ 3 But a law of a 

1 See 1 Kent's Com. 439 and n. 

2 See The License Cases, 5 How. U. S. K. 504 to 609. 

3 New York v. Miln, 11 Pet. 102, 138. 



308 POLITICAL AND CONSTITUTIONAL LAW 

state requiring of the master of every vessel arriving from: 
a foreign country or another state, to pay a certain sum 
for each passenger, to the support of a marine hospital,, 
was pronounced to be unconstitutional and void; on the 
grounds, that the state law was a regulation of commerce; 
that persons as well as goods are the objects of commerce y 
and that congress had so legislated as to cover the ground 
in question. 1 Yet pilot laws, made by a state, have been 
sustained : for although these are regulations of commerce,, 
congress has established no system of pilotage. 2 

\ 223. Bridg- The power of a state to interfere with the free naviga- 
ing navigable tion of navigable waters, in a very great measure depends- 
streams. upon whether such navigation is a matter of general con- 

cern, of interest to more states than one, or is something 
of importance to that state alone, and the importance of 
which may be outweighed by other considerations affecting 
that state. The exercise of the power in question, where 
the navigation is of consequence only to the state itself,, 
and the act of interference is a measure of internal im- 
provement and for the welfare of the state, is held to be,, 
as we have formerly seen, within the sphere of state au- 
thority ; although it abridges the rights of navigation con- 
ferred by general congressional legislation. 3 But a state can- 

1 Passenger Cases, 7 How. U. S. E. 283. The court was divided; 
five against, and four (including the chief justice) for, the state laws. 
See Sinnot v. Davenport, 22 How. U. S. R. 227. 

2 Cooley v. The Wardens of the Port of Philadelphia, 12 How. U. S. 
R. 299. 

3 "Wilson v. Blackbird Creek Co., 2 Pet. 245 ; ante, \ 186. To the 
same point, is the case of Oilman v. Philadelphia, 3 Wallace, 713. 
In this last case, the legislature of Pennsylvania had authorized the city 
to erect, and the city had commenced to erect, the new bridge over the 
Schuylkill river — the Chestnut street bridge. This river is wholly within 
the jurisdiction of the state of Pennsylvania, and divides, the city of 
Philadelphia. It had often been bridged ; and the new bridge was nec- 
essary in consequence of the constantly increasing demand for means of 
communication between the two portions of the city. The bridge, how- 
ever, must interfere with navigation, and with rights enjoyed by virtue 
of congressional action in pursuance of the power to regulate commerce. 
The power of the state to authorize the bridge was therefore questioned. 
But the state authority was fully sustained by the Supreme Court of the 



OF THE UNITED STATES. 309 

not authorize the construction of a bridge which interferes 
with the free navigation of a stream, where more states than 
■one are immediately concerned in such navigation. 1 In 
such a case, the power to authorize the bridge or other 
obstruction, is a part of the power to regulate commerce 
vested in congress. 2 

United States : the court relying upon the principles enounced in the 
case of "Wilson v. The Blackbird Creek Company ; maintaining the dis- 
tinction between subjects of commercial regulation which call for general 
and uniform legislation by congress, and subjects of commercial regula- 
tion which call for provisions suggested by the varying circumstances of 
different localities, and limited to such localities respectively; and also 
asserting the doctrine that the latter class of commercial subjects are 
within the control of the states respectively, and deciding that the case 
was one of this class. See \ 220, ante. 

1 Pennsylvania v. The Wheeling Bridge Co., 13 How. U. S. R. 518. 

2 Pennsylvania v. The Bridge Co., (No. 2) 18 How. XL S. R. 421. The 
•decision in the first of these cases, 13 How. U. S. R. 518, and that in Gil- 
man v. Philadelphia, 3 Wall. R. 713, are regarded by Mr. Pomeroy as 
■directly in conflict with each other (Pomeroy's Const. Law, \ 371). He 
says, 'Laying out of view the Blackbird Creek case, the judgment in 
Gilman v. Philadelphia is opposed to the whole scope and tenor of all 
prior decisions, and is in direct conflict with Pennsylvania v. Wheeling 
Bridge Company. Indeed,' he goes on to say, 'these two cases are abso- 
lutely identical in their facts ; in each, the plaintiff sought to protect his 
rights as proprietor on the banks of the river above the bridge ; in each, 
a state, by its statute authorizing a permanent bridge, had interfered 
with those rights ; in neither had congress directly legislated upon the 
subject of bridges. Yet the court overthrew the statute of Virginia, 
and upheld that of Pennsylvania.' The standpoint from whence his 
-observations are taken, blinds him to the fact, in the Wheeling Bridge 
-case, that the free navigation of the Ohio was a matter involving the 
interests of more states than one : as well as to the fact, in Gilman v. 
Philadelphia, that the navigation of the Schuylkill was of little or no 
consequence to any other state than that of Pennsylvania, and, so far as 
obstructed, of much less importance to her than the construction of the 
bridge. These are the facts which distinguished the cases ; which brought 
the one within Gibbons v. Ogden, and the other within the Blackbird 
Creek case ; and which called for the application of a theory quite dif- 
ferent from that of Mr. Pomeroy, a theory adopted by Chief Justice 
Marshall in the former of these cases, and concerning this very subject, 
that ' The genius and character of the whole government [of the Union] 
seem to be, that its action is to be applied to all the external concerns of 
the nation, and to those internal concerns which affect the states gener- 
ally, but not to those which are completely within a state, when they do 



310 POLITICAL AND CONSTITUTIONAL LAW 

I 224. Fish- The power to regulate fishing in the navigable waters- 
eries. of a state, is clearly no part of the power to regulate com- 

merce, and was never vested in any department of the 
general government. Each state, as we have seen, is the 
paramount owner and sovereign of the soil within its jur- 
isdiction; 1 and the right to regulate fishing innavigable 
waters, is a right that follows the sovereignty of the soil 
underlying those waters. 2 

not affect other states, and with which it is not necessary to interfere for 
the purpose of executing some of the general powers of the government.' 
9 "Wheat. 194. This pointed the way. In Gibbons v. Ogden, and in the 
Wheeling Bridge case, the interests of more states than one were in- 
volved, and the question related to 'those internal concerns [of the 
nation] which affect the states generally ;' while in "Wilson v.The Black- 
bird Creek Co., and again, in G-ilman v. Philadelphia, only the interests 
of one state were at stake, and little or nothing was affected but ' those 
internal concerns which are completely within a state.' Mr. Pomeroy 
(§ 373 of his work referred to) seems to fear that Gilman-y. Philadelphia, 
might warrant New York in bridging the Hudson river, or the East river, 
so as to affect navigation. And so it might, if his theory of the constitu- 
tion were admitted and that of Chief Justice Marshall excluded. He 
finds it exceedingly difficult to reconcile the authorities with his funda- 
mental position that the Union is a union of the whole people of the 
country as a single political state, and not a union of states, as several,, 
sovereign and independent political communities : that the powers of 
the states, being delegated to them by ' the nation,' and in derogation of 
the sovereignty of 'the nation,' must be construed strictly; while the 
powers of the general government, being granted by 'the nation' for 
* national' purposes, should be extended by construction, to every ob- 
ject of 'national' interest, that is, to every object which the ' national' 
government may deem an object of ' national ' interest. Mr. Pomeroy 
would have us believe that wherever the Supreme Court of the United 
States has ignored this imperial doctrine, — and that is everywhere, — it. 
has been strangely inconsistent, and guilty of a departure from original 
principles and venerated landmarks. x Ante, \ 8. 

2 Smith v. State of Maryland, 18 How. U. S. E. 71. The state had. 
prohibited, by law, under certain penalties, fishing for oysters with a 
scoop or drag, within her jurisdiction of the Chesapeake Bay. The con- 
stitutionality of the law was questioned ; but wholly sustained by the 
court. In this connection, see the opinion of the court in Martin et aL 
v. "Waddell, 16 Pet. 410-417. It is of course understood, that any in- 
terference with the free use of waters for purposes of navigation and 
commercial intercourse, though under the pretext of regulating the use- 
of fisheries and oyster beds, would, if it affected more states than one, 
render the state law void, to the extent of such interference. See 1 
Kent's Com. * 439. 






OF THE UNITED STATES. 311 

The power 'To establish a ^uniform rule of naturaliza- \ 225.*Pow- 
tion and uniform laws on the subject of bankruptcies, er of congress 
throughout the United States/ is the next of the enumer- as to bank ~ 
ated powers of congress. 1 So far as it relates to naturali- rup - 
zation, this has already been briefly considered, in connec- 
tion with the subject of citizenship to which it relates. 
Our attention is therefore here confined to the power i to 
establish uniform laws on the subject of bankruptcies/ 
The propriety of vesting a power of this nature in the 
federal legislature, has never been seriously doubted. The 
principal difference of opinion respects the meaning of the 
term 'bankruptcies/ and consequently, the extent of the 
power; some holding that the term should be taken in its 
original and technical sense ; others, that it ought to em- 
brace all manner of insolvencies. 2 This diversity of opin- 
ion will probably continue to exist so long as the power 
shall remain undefined by the Supreme Court of the United 
States. 

The exercise of this power by congress, has been occa- g £26. State 
sional only; at times the country has languished for want jurisdiction. 
of a suitable bankrupt code ; and as the mere naked grant 
of the power to congress, does not itself restrain the states 
from exerting the power, various and different systems of 
laws for the relief of debtors have frequently existed, side 
by side, solely in virtue of state authority. This is an 
evil, which the grant of the power to the federal legisla- 
ture was designed to avert. 3 If, however, congress fails 

1 Const. U. S. Art. I, \ 8. 

2 According to Mr. Pomeroy (Const. Law, \ 405), ' The constitution 
confers upon congress full power virtually to ordain one set of rules gov- 
erning the relations of debtor and creditor throughout the whole extent 
of the country.' ' The subject of bankruptcies ' thus is rendered ''the re- 
lations of debtor and creditor? To extend the powers of the 'national' 
government, and limit those of the states, is, however, his constant aim. 

3 For once, at least, I fully concur with Mr. Pomeroy, whose theory 
especially, I have felt it my duty to oppose on every occasion. ' The 
great trade and commerce of the country now passes beyond the limits 
of any one state ; it is in a measure international ; the creditor resides 
in one state, under one municipal law, the debtor in a different com- 
monwealth, which is governed by another local code. The diversities 






212 POLITICAL AND CONSTITUTIONAL LAW 

in the discharge of its duty, or having established a bank- 
rupt code, repeals the law it has passed on the subject, 
the power of the states to establish laws upon the subject 
of bankruptcies, such laws as each shall judge expedient, 
revives, and for the time exists as it would have existed if 
the power had not been vested in congress. The enactment 
of bankrupt laws by congress, suspends the power of the 
States ; the repeal of such laws, revives that power. 1 

among the state laws which regulate the collection of debts, and the set- 
tlement of the estates of insolvents, whether fraudulent or simply un- 
fortunate, are almost as numerous as the states themselves. In some, 
preferential assignments are permitted, in others forbidden ; in some, 
long stays upon execution are allowed ; in some, an insolvent may be 
discharged from liability with the consent of a definite portion of the 
creditors ; in others, without the consent of any ; in others still, not 
without the consent of all. Added to this discrepancy, it is firmly set- 
tled by the Supreme Court of the United States, that an insolvent's dis- 
charge under a state law has no extra-territorial effect ; that it is not in 
the least binding upon a creditor residing in another commonwealth 
who has not assented to it, although he may have been notified of the 

proceeding and made a party thereto Among the several 

states of the Union, this diversity, and its accompanying inconvenience, 
need not exist. .... The " uniformity " permitted by the organic 
law, would render a discharge in one state binding in all others ; would 
establish the same acts and defaults of the debtor as occasions for bank- 
rupt proceedings in every section ; would abolish the iniquitous privi- 
lege of making preferential assignments ; would enable the merchant in 
New York or Philadelphia who sells on credit to a trader in Illinois or 
Kentucky, to feel certain that when the time for payment should arrive, 
his debtor would not have failed and placed his assets completely be- 
yond the reach of the deceived and exasperated creditor.' Pomeroy's 
Constitutional Law, \\ 404, 405. 

1 Sturgis v. Crowninshield, 4 "Wheat. 122 ; Ogden v. Saunders, 12 
"Wheat. 213. In the last of these cases, 'The propositions which the 
adjudication maintains, are these : 1st. That the power given to the 
United States [to congress] to pass bankrupt laws, is not exclusive. 2nd. 
That the fair and ordinary exercise of that power by the states does not 
necessarily involve a violation of the obligation of contracts, mulio for- 
tiori of posterior contracts. 3rd. But when in the exercise of that 
power, the states pass beyond their own limits, and the rights of their 
own citizens, and act upon the rights of citizens of other states, there 
arise a conflict of sovereign power, and a collision with the judicial 
powers granted to the United States, which render the exercise of such 
a power incompatible with the rights of other states and with the con- 
stitution of the United States.' 12 Wheat. 369. 



OF THE UNITED STATES. 



313 



The power i To coin money, regulate the value thereof, \ 227. Post- 
and of foreign coin, and fix the standard of weights and offices and 
measures/ and the power ' To provide for the punishment P ost - roa ds. 
•of counterfeiting the securities and current coin of the 
United States/ are simple in terms and sufficiently speak 
for themselves. I therefore pass to the power i To estab- 
lish post-offices and post-roads/ This, though very pre- 
cisely expressed, has given rise to great differences of 
opinion concerning its extent, and also invoked the rules 
.and principles of constitutional construction : some contend- 
ing that it includes the power to construct or purchase 
buildings and roads of whatever description, and to any 
extent that congress may judge proper, with a view to the 
establishment, extension or regulation of the postal sys- 
tem; others that the power is exhausted by the establish- 
ment of the places for the reception and distribution of 
mailable matter, of existing roads as routes over which 
the mails shall be carried, and of laws and regulations for 
the proper government of the postal department. The 
extent of the power has never been determined by judicial 
construction. The legislative action of congress, how- 
ever, seems to require that the grant be read, l to purchase 
lands and erect buildings thereon; to grant the public 
lands in aid of lines of railway ; and to pass all laws 
whatsoever which congress may judge expedient, provided 
they multiply post-offices and post-roads/ 



The power ' To promote the progress of science and § 228. Pat- 
Tiseful arts, by securing, for limited times, to authors and ent and C0 Py~ 
inventors, the exclusive right to their respective writings rig s ' 
.and discoveries/ is the next of the enumerated powers of 
congress. Here the purpose of the power is expressed; 
to which purpose, the power is given as the means : in or- 
der to promote the progress of science and useful arts, 
•congress has power to secure, for limited times, to authors 
and inventors, the exclusive right to their respective writ- 
ings and discoveries. In pursuance of this power, laws 
have been passed by congress, by which the rights of 
^authors and inventors are prescribed, secured and pro- 



314 POLITICAL AND CONSTITUTIONAL LAW 

tected, and the progress of science and useful arts, greatly- 
promoted. The states, perhaps, are not wholly deprived 
of their jurisdiction over the subject. But as authors and 
inventors could hardly be secure, under state legislation,, 
in the exclusive right to their respective writings and dis- 
coveries; and as the power to secure such exclusive right 
cannot very well be divided, the power of the states in 
this particular, must be confined to such legislation as may 
not conflict with the laws prescribed by congress. In 
fact, no one can doubt that this is a matter of equal and 
common interest to all the states, and one that ought to be 
regulated by common authority and uniform laws. The 
fundamental rule of constitutional construction, plainly 
requires that the power of legislation concerning this sub- 
ject be considered as exclusively in congress. 

I 229. We come to the powers, 'To constitute tribunals inferior 

Piracies and to the Supreme Court : To define and punish piracies and 
felonies on felonies committed on the high seas, and offences against 
e ig seas, ^ Q j aw Q ^ na ^ ons> > 1 Tn e former requires no explanation : 
and offences * . ,. , m , 

ao-ainst the to ' tne l^ter, therefore, our attention is directed. The 
law of na- definition and punishment of the offences mentioned, must 
tions. doubtless be of common and equal importance to all the 

states. The power to define and punish them, is therefore 
vested exclusively in congress. The offences particularly 
mentioned, i piracies ' especially, are * offences against the 
law of nations ; ' and the power to provide for their pun- 
ishment would have passed to congress, if only the power 
to punish the latter had been conferred. Therefore the 
enactment of a law by congress, providing for the punish- 
ment of { the crime of piracy as defined by the law of na- 
tions/ was held to be constitutional and valid. 2 Pirates 
are viewed not only in the light of public enemies, but as 
the enemies of the whole human race (hostes humani generis), 
and are everywhere punished with death. 3 The crime of 

1 Const. U. S. Art. 1, § 8. 

2 The United States v. Smith, 5 "Wheat. 153. 

3 Id. 161, 163; 6 How. U. S. R. 344. See 1 Kent's Com. * 185,. 
et seq. 



OF THE UNITED STATES. 315 

piracy is variously defined by the writers of public law; 
but all concur in holding that robbery or forcible depreda- 
tion committed on the sea, animo furandi, is piracy. 1 It is 
the same offence at sea as robbery on land. 2 Many acts 
done on the sea, which do not properly fall within the defi- 
nition of piracy, may be made piracy by particular stat- 
utes, and thus brought under the operation of the muni- 
cipal criminal code. It is for this reason that congress 
is enabled not only to punish, but to define piracies. Thus 
the United States may, by special statute, declare, as they, 
Great Britain, and many other countries have declared, 
the slave trade to be piracy, and may inflict such punish- 
ments as are thought expedient, upon the persons engaged 
in the nefarious traffic. 3 

If the power of congress were limited to the punishment g 230. Ex- 
of the offences mentioned, their definition would have to be tent of the- 
found in the law of nations, or the old common law. But power to de- 
as the power to define them is also included in the grant, . ^ e an pun ~ 
the power of congress cannot be determined or limited by 
reference to either or both of those laws ; in fact, it seems 
to involve an unlimited jurisdiction of all offences c com- 
mitted on the high seas;' that is to say, on the waters of 
the ocean without the jurisdiction of any state, 4 and of all 
'offences against the law of nations/ The definition and 
punishment of such offences being of common and univer- 
sal concern, and of equal interest to all the states, no valid 
objection to an unlimited power in congress to legislate in 
relation thereto, can be reasonably anticipated. 

The definition of piracies might have been left, perhaps, 
to the law of nations; though a legislative definition of 
them is found in most municipal codes. A definition of 
felonies on the high seas, is evidently requisite. Felony 
is a term of loose signification, even in the common law of 
England, whence it is derived : and of various import in 

1 "United States v. Smith, 5 Wheat. 153. 

2 Id. ; 1 Kent's Com. * 183. 
3 Pomeroy's Const. Law, \ 427. 
4 See 1 Kent's Com. * 367. 



316 POLITICAL AND CONSTITUTIONAL LAW 

the statute law of that kingdom. 1 But neither the com- 
mon nor the statute law of that or any other nation, ought 
to be a standard for the proceedings of this, unless they 
have previously been made our own by legislative adop- 
tion. The meaning of the term, as denned in the codes of 
the several states, would be a guide as impracticable as the 
former would be an illegitimate one. It is not precisely 
the same in any two of the states; and varies in each with 
every revision of its criminal laws. For the sake of cer- 
tainty and uniformity, therefore, the power of denning 
felonies in this case, was in every respect necessary and 
proper. 2 

1 231. War Next, we come to the war powers of congress. These 
powers of are — 'To declare war, grant letters of marque and reprisal, 
•congress. an( j ma k e rules concerning captures on land and water: 
To raise and support armies; but no appropriation of 
money to that use shall be for a longer term than two 
years: To provide and maintain a navy: To make rules 
for the government and regulation of the land and naval 
forces : To provide for calling forth the militia to execute 
the laws of the Union, suppress insurrections and repel 
invasions: To provide for organizing, arming and disci- 
plining the militia, and for governing such part of them 
as may be employed in the service of the United States, 
reserving to the states, respectively, the appointment of 
the officers, and the authority of training the militia ac- 
cording to the discipline prescribed by congress/ 3 

I 232. To 'To declare war/ It often happens that nations or 
make war and states, like private individuals, must suffer a wrong, or 
peace. repel it by force ; and if, as is generally the case, the lat- 

1 Offences the punishment of which, at common law, involved the for- 
feiture of lands and goods, were denominated felonies ; and- perhaps it 
would now be difficult to say what offences are felonies, except by say- 
ing that all are felonies which would, at common law, have occasioned 
such forfeiture. In many of the states, however, where the statutes 
annex an ignominious punishment to an act, the act is called a felony. 

2 The Federalist, No. 42, p. 194. 

3 Const. TJ. S. Art. i, I 8. 



OP THE UNITED STATES. 317 

ter alternative be preferred, it is certainly proper, if not 
always necessary, that a solemn declaration of the in- 
juries threatened or received, and of the nature of the 
security or redress demanded, should precede the em- 
ployment of coercive measures. In all societies alike, 
whether of individuals or of states, the power must some- 
where reside, to determine the question of peace or war, 
and as this is properly a legislative power, the exercise of 
which is of common and equal importance to all, it ought, 
without doubts to be exclusively vested in the general 
legislature. In a union of states, this power would natu- 
rally belong to the federal council. It was therefore con- 
fided to congress by the original articles of confederation, 1 
and the states were restrained, then, as now, from exert- 
ing the powers relating to war. In this respect, the power 
of congress is generally deemed to be exclusive. And as 
war cannot be lawfully commenced on the part of the 
United States without an act of congress, such an act is, 
of course, a formal official notice to all the world, and 
equivalent to the most solemn declaration. 2 

For its own protection, nevertheless, each state, without 
doubt, is fully clothed with all the rights of war ; just as 
each individual member of society may lawfully protect 
himself, whenever the power of the state is too weak or 
too distant to shield him from danger or avenge his 
wrongs. 3 

* To grant letters of marque and reprisal/ The power 
to do this, is also exclusively vested in congress, and ex- Letters of 
pressly denied to the states. It might have been well, marque, etc. 
perhaps, had it been wholly denied to the federal govern- 
ment, as well as to the states. For privateering, under 
all the restrictions usually adopted, is very liable to abuse. 
The object is not fame or chivalric warfare, but plunder 
and profit. The discipline of the crews is not apt to be 
of the highest order, and privateers are often guilty of 

1 Art. ix. 

2 1 Kent's Com. * 55. 

3 As to the War-Power of the State, see p. 93 ante. 



£23; 



318 POLITICAL AND CONSTITUTIONAL LAW 

enormous excesses, and become the scourge of neutral 
commerce. 1 

I 234. <rp ma ]j e ru les concerning captures on land and water/ 

The word i captures/ as here used, means things taken by 
the armed forces of the government, and not the acts of 
taking. 2 Congress may, therefore, make rules concern- 
ing all things taken, seized, or captured, by the national 
forces; may enact an entire code of prize regulations, for 
the disposition of things and persons captured from the 
enemy, whether on land or water, and whether in civil or 
foreign war. 3 

\ 285. To 'To raise and support armies; but no appropriation of 
raise armies, money to that use shall be for a longer term than two 
years/ The ( armies ' referred to, are standing or regular 
armies, as distinguished from bodies of militia and organi- 
zations of volunteers. 4 The evil, and the necessity, of 
standing armies, are alike admitted. They are dangerous 
to the liberties of mankind, to the peace and security of 
the human race, and to whatever system of government 
they are called to maintain. But organized forces are 
necessary, and indeed indispensable, to the support of gov- 
ernment, whether as against its internal enemies or its for- 
eign foes. If it be urged that a faction may obtain the 
control of the government, and direct the powers of war 

1 1 Kent's Com. * 97. The federal government, by its treaties with 
foreign nations, has almost rendered the power a nullity. In the various 
treaties between the United States and France, Holland, Sweden, Prus- 
sia, Great Britain, Spain, Columbia, Chili, etc., it is declared, that no 
subject or citizen of either nation shall accept a commission or letter of 
marque, to assist an enemy in hostilities against the other, under pain 
of being treated as a pirate. See 1 Kent's Com. * 100. 

2 Pomeroy's Const. Law, \ 455. 

3 Id. See The Prize Cases, 2 Black's Eep. 685. There is, doubtless, as 
Mr. Pomeroy says, 'something exquisitely absurd in the supposition 
that a civil, any more than a public, war, can be waged under the pro- 
tection of the Bill of Eights.' The absurdity, however, consists, not 
in maintaining the constitution inviolate, in war as in peace, but in the 
idea, that those who violate it should claim its protection. 

*See The Federalist, Nos. 24 to 30. 



OF THE UNITED STATES. 319 

to the accomplishment of their ends, the answer is, that 
that can only be the fault of the people themselves who 
support such faction. The power itself 'to raise and sup- 
port armies/ must exist somewhere. To whom, then, 
should the power belong ? It is doubtless safest in the 
hands of the immediate representatives of the people. It 
is one of those powers the objects of which are of equal 
and common importance to all the states. It could there- 
fore only be vested in the federal legislature. Congress 
had, indeed, under the old confederation, an unlimited dis- 
cretion to make requisition of men and money ; to govern 
the army and navy; to direct their operations. As their 
requisitions were constitutionally binding on the states, 
who were in fact under the most solemn obligations to 
furnish the supplies required of them, the intention evi- 
dently was that the United States should command what- 
ever resources were by them judged requisite to -the com- 
mon defence and general welfare/ 1 

1 But no appropriation of money, to raise and support 
armies, shall be for a longer term than two years/ This Qk ec k a " an ^ 
was designed as a check to the power. The members of limits to the 
the popular branch of the federal legislature are elected power. 
for only two years. If the people disapprove of their 
measures, they return others in their stead. But in less 
than two years, a military government is established, and 
the free utterance of opinion, whether by speech, by the 
press, or by ballot, ended and silenced! This we have 
seen, in our own times, and in our own country. Is there, 
then, no limit to the power ? There seems to be none 
which is not theoretical. No practical limit to the power 
has ever been found, or by any acknowledged, unless in 
the powers reserved to the states; of which we presently 
speak. 2 

'To provide and maintain a navy/ The power of con- $ 237. To 
gress in this particular, is clearly unlimited. It can hardly provide a na- 
be used, however, in a manner unfavorable to the liberties vy " 

1 See The Federalist, No. 23, p. 105. 

2 See post, I 240, et seq. 



states. 



320 POLITICAL AND CONSTITUTIONAL LAW 

of the people. Navies are seldom the instruments of 
tyranny. Nor are they, in modern times, of secondary 
importance to the glory and security of political states. 

\ 238. To t To make rules for the government and regulation of 
make rules ^ e i an( j an( j nava i forces/ The object of this power, is 
or army a ^ e establishment of army and navy regulations ; systems 
of tactics and discipline, and laws denning and punishing 
offences committed by persons in the army or navy. The 
rules prescribed by virtue of this power, apply to none 
but persons belonging to either the land or naval forces. 
They cannot be an authority for the trial, conviction and 
execution of civilians by military courts. 

I 239. To The remaining war powers of congress relate to the 
call in aid the m mtia. These are — 'To provide for calling forth the mi- 
e litia to execute the laws of the Union, suppress insur- 
rections, and repel invasions: To provide for organizing,, 
arming and disciplining the militia, and for governing 
such part of them as may be employed in the service of 
the United States ; reserving to the states respectively the 
appointment of the officers and the authority of training 
the militia according to the discipline prescribed by con- 
gress/ 

The term ' militia ' here refers to the military forces of 
the states respectively. The militia always was, and still 
is, that of the states; the jurisdiction of the United States 
over it being at all times partial and exceptional. 1 The 
laws of the Union can be executed only, and insurrections 
and invasions can only take place, within the limits of the 
United States. And the power of congress to call forth 
the militia, being limited to the purposes mentioned in 
the grant, — namely, l to execute the laws of the Union, 
suppress insurrections, and repel invasions $' it follows, of 
course, that the militia can never be marched, in any 
event, beyond the boundary lines of the country. 

1 Pomeroy's Const. Law, \ 472. 



OF THE UNITED STATES. 321 

The powers of the states, since the adoption of the fed- \ 240. Pow- 
eral constitution, have remained the same as before, except er of the states 
so far as abridged by that instrument. They are abridged ° # v . er t ^ ieirmi _: 
by that instrument, as concerns the militia, only so far as 
relates to providing by law for organizing, arming and 
disciplining them, for calling them forth for the purposes 
specifically mentioned, and for governing such part of 
them as may be employed in the service of the United 
States. In other respects, the power of each state con- 
cerning its militia, remains complete, subject to no exter- 
nal 'control. The execution of the laws prescribed by 
congress for organizing, arming and disciplining the mi- 
litia, together with the appointment of their officers, and 
the execution of all calls upon them, therefore remain with 
each state. And this being the case, the power of a state, 
over its militia, is practically unlimited. Even the power 
of enacting militia laws, so far as the ground is not actu- 
ally covered by congressional legislation, yet remains with 
the states respectively. 1 A mere grant of power in affirm- 
ative terms to congress, does not per se transfer an exclu- 
sive jurisdiction over the subject. The powers vested in 
congress are never exclusive of similar powers originally 
existing in the states, unless where the constitution has 
expressly in terms given an exclusive power to congress, 
or the exercise of a like power is prohibited to the states, 
or there is a direct repugnancy or incompatibility in the 
exercise of it by the states. 2 

The power of the states concerning the militia, is their „ 0±1 gt t 
only power of self-defence. In time of peace no state can, defence. 
without the consent of Congress, keep up troops or ships 
of war. 3 Its only arm of ready defence, if any it have, 
against usurpations in the federal government, or against 
insurrections or invasions, is a properly organized and 
disciplined militia. 

The Federalist assured the people, pending the ratifica- 

1 Houston v. Moore, 5 Wheat. 1. See Martin v. Mott, 12 Wheat. 19. 

2 Id. The Federalist, No. 32, p. 140. 

3 Const. U. S. Art. 1, \ 10. 

U 



322 POLITICAL AND CONSTITUTIONAL LAW 

tion of the federal constitution, that the powers reserved 
to the states were all-sufficient for their own defence. 
"What were the powers referred to ? Alexander Hamilton 
said : 'It may safely be received as an axiom in our polit- 
ical system that the state governments will, in all possible con- 
tingencies, afford complete security against invasions of the 
public liberty by the national authority. Projects of usurpa- 
tion cannot be masked under pretences so likely to escape 
the penetration of select bodies of men, as of the people at 
large. The legislatures will have better means of informa- 
tion; they can discover the danger at a distance; and pos- 
sessing all the organs of civil power, and the confidence of 
the people, they can at once adopt a regular plan of oppo- 
sition, in which they can combine all the resources of the 
community. They can readily communicate with each 
other in the different states, and unite their common forces, 
for the protection of their common liberty. The great 
extent of the country is a further security. We have 
already experienced its utility against the attacks of a 
foreign enemy. And it would have precisely the same 
effect against the enterj^rises of ambitious rulers in the 
national councils. If the federal army should be able to 
quell the resistance of one state, the distant states would 
have it in their power to make head with fresh forces. 
The advantages obtained in one place must be abandoned, 
to subdue the opposition in others : and the moment the 
part which had been reduced to submission was left to 
itself, its efforts would be renewed, and its resistance 

revive When will the time arrive, that the federal 

government can raise and maintain an army capable of 
erecting a despotism over the great body of the people of 
an immense empire, who are in a situation through the 
medium of their state governments, to take measures for 
their own defence, with all the celerity, regularity, and 
system of independent nations ? ' l 

\ 242. But here the question again arises, has any state govern- 

ment the power to judge of usurpations by the federal gov- 

»The Federalist, No. 28, pp. 126-127. 



OF THE UNITED STATES. 323 

eminent ? That it lias, seems to be assumed in the forego- 
ing argument of Alexander Hamilton. ~No state, indeed, 
can defend itself, or maintain its authority, except by 
means of its government. Nor is it impossible that cases 
may arise, in which the inalienable rights of a state, or of 
4 the people ' of a state, may be invaded by the federal au- 
thorities. These rights, the state government is bound to 
protect. And who is the final judge of violations of these 
rights ? If the federal government, their defence or pro- 
tection as against usurpations by that government, be- 
comes a manifest absurdity. There is nothing, then, in 
the doctrine of Hamilton, which may not become of prac- 
tical importance. The case supposes 'the enterprises of 
ambitious rulers in the national councils; 7 and regards 
* the people ' as < in a situation through the medium of their 
state governments, to take measures for their own defence, 
with all the celerity, regularity, and system, of independ- 
ent nations/ In such a case, ' if the federal army should 
be able to quell the resistance of one state, the distant 
-states would have it in their power to make head with 
fresh forces/ The federal army, then, the army which 
congress has power to maintain by virtue of the clause 
■ l to raise and support armies/ is not to be confounded with 
the forces of a state ; that is, with the militia. The former 
belongs to the federal government ', the latter, to the state. 
And yet, ' to execute the laws of the Union, suppress in- 
surrections, and repel invasions/ the federal government 
may call for the militia. 1 State resistance to federal au- 
thority is i insurrection/ If this be true, all the states be- 
ing equally bound by federal calls for their militia, the 
state which resists, is bound to contribute its quota, in 
order to put down its own resistance ! If it does not will- 
ingly do this, the federal government may resort to con- 
scriptions, may divide the state into military districts, and 
draft from each so many as necessary to put down the 
state resistance or < insurrection ! ' I speak only of the 
right, the constitutional right of the federal government.. It 
may or may not have the power or force sufficient. This 

1 See post, I 291. 



324 POLITICAL AND CONSTITUTIONAL LAW 

can make no difference. Eight is not determined by might; 
for that which is strong to-day, may be weak to-morrow ; 
yet that which is right to-day, however weak or strong,, 
will still be right to-morrow. The right of the govern- 
ment is determined by the constitution. It has a right to 
'suppress insurrections ' against its authority. State re- 
sistance is ' insurrection/ It matters not how many states 
engage therein, whether a few, a large majority, or all to- 
gether. They are equally bound to contribute forces suf- 
ficient to enable the federal government to put down their 
resistance ! This cannot be questioned ; for if one is bound 
to aid in subduing the resistance of another, it is bound to 
aid in subduing its own resistance. How shall we escape 
this contradiction ? 

I 243. Here we are driven to one of three grounds : 1. State 

resistance is, in all cases, insurrection, rebellion, against 
the general government. 2. Self-defence by a state is ex- 
cepted. 3. State resistance by a constitutional majority 
(three-fourths) of the states, is constitutional. The first is 
equivalent to the unqualified assertion of the imperial 
theory, that the states have no rights but such as the gen- 
eral government may choose to concede to them. The 
second leads to the opposite doctrine, that each state is, 
singly and alone, in the last resort, the judge of violations 
of its rights, even as against the rest combined, and may, 
whenever it acts in self-defence, take any step it may deem 
expedient; resume the powers which it, in conjunction 
with the others, delegated to the federal government; 
withdraw itself or l secede ' from the union, and, to that 
extent, dissolve the confederacy. The third avoids these 
two extremes, by holding the decision of any one state to 
be subordinate to the will of the constitutional majority. 
This is the principle of action as among 'the people' of 
each state, themselves. It rests, as we have formerly 
shown, * upon the distinction between the internal sover- 
eignty and the external sovereignty of 'the people ' of each 
state j between the right of internal self-government, and 

1 Ante, §g 14, 15, et seq. 



OF THE UNITED STATES. 325 

the right to an equal voice with others in the direction 
and control of such affairs as are of equal importance to 
all. It is very well known that Hamilton was one of the 
principal leaders of the ' Nationals ' in the convention that 
framed the federal constitution. As one of the distin- 
guished writers of The Federalist, he afterwards candidly 
acknowledged his 'aversion to every project that was cal- 
culated to disarm the government of a single weapon, 
which, in any possible contingency, might be usefully em- 
ployed for the general defence and security/ l He must 
therefore be understood, when speaking of state resist- 
ance against federal usurpations, as having in view the 
possible action of a constitutional majority of the states, 
and not as sanctioning the doctrine that a decision of the 
question of such usurpations can be made by the minority. 
Three-fourths of the states may constitutionally dissolve 
the union. Their decision, whether it be for or against 
the course of the general government, must in the end 
prevail. 2 

The next of the enumerated powers of congress, is the « 2 44 p w- 
power 'To exercise exclusive legislation, in all cases what- er over places 
soever, over such district (not exceeding ten miles square), ceded to Uni- 
as may, by cession of particular states, and the acceptance ted States. 
of congress, become the seat of government of the United 
States, and to exercise like authority over all places pur- 
chased, by the consent of the legislature of the state in 
which the same shall be, for the erection of forts, maga- 
zines, arsenals, dock-yards and other useful buildings/ 3 

The reasoning of 'The Federalist' in support of this 
delegation of power, is clear and conclusive. ''The indis- 
pensable necessity of complete authority at the seat of 
government, carries its own evidence with it. It is a power 
■exercised by every legislature of the union, I might say 
■of the world, by virtue of its general supremacy. With- 
out it, not only the public authority might be insulted and 

^he Federalist, No. 36, p. 160. 

2 See \ 146, et seq. 

3 Const. U. S. Art. I, \ 8. 



326 POLITICAL AND CONSTITUTIONAL LAW 

its proceedings be interrupted with impunity, but a depend- 
ence of the members of the general government on the 
state comprehending the seat of the government, for pro- 
tection in the exercise of their duty, might bring on the 
national councils an imputation of awe or influence, equally 
dishonorable to the government and dissatisfactory to the 
other .members of the confederacy. This consideration 
has the more weight, as the gradual accumulation of public 
improvements at the stationary residence of the govern- 
ment, would be both too great a public pledge to be left 
in the hands of a single state, and would create so many 
obstacles to a removal of the government, as still further 
to abridge its necessary independence. The extent of this 
federal district is sufficiently circumscribed to satisfy every 
jealousy of an opposite nature. And as it is to be appro- 
priated to this use with the consent of the state ceding it^ 
as the state will no doubt provide in the compact for the 
rights, and the consent of the citizens inhabiting it; as the- 
inhabitants will find sufficient inducements of interest to- 
become willing parties to the cession; as they will have 
had their voice in the election of the government which is 
to exercise authority over them ; as a municipal legislature- 
for local purposes, derived from their own suffrages, will 
of course be allowed them; and as the authority of the- 
legislature of the state, and of the inhabitants of the ceded 
part of it, to concur in the cession, will be derived from 
the whole people of the state, in their adoption of the con- 
stitution, every imaginable objection seems to be obvi- 
ated/ 

' The necessity of a like authority over forts, magazines,, 
etc., established by the general government, is not less- 
evident. The public money expended on such places, and 
the public property deposited in them, require that they 
should be exempt from the authority of the particular 
state. Nor would it he proper for the places on which the 
security of the entire union may depend, to be in any de- 
gree dependent on a particular member of it. All objec- 
tions and scruples are here also obviated by requiring the- 



OF THE UNITED STATES. 327 

concurrence of the states concerned in every such estab- 
lishment.' x 

The power 'to exercise exclusive legislation, in all cases $[245. Ex- 
whatsoever/ is, in terms, all-comprehensive. Language tent of the 
conferring a power of greater extent, over given localities, power, 
could not have been framed. No case can arise, civil or 
criminal, within the places ceded to the United States, to 
which the laws enacted by congress will not exclusively 
apply. In relation to such places, congress, in addition to 
its powers as the general legislature for the union, has all 
the discretionary powers of a state legislature. It is there- 
fore within the jurisdiction of congress to provide for the 
punishment of offences committed in such places; to pro- 
vide for the pursuit and arrest of criminals escaping there- 
from, and, in short, to make all regulations for the due 
administration of justice,, so far as proper or necessary to 
the complete execution of the principal power. 2 It follows 
as of course, that state courts cannot take cognizance of 
any offences committed within such ceded districts ; and, 
on the other hand, that the inhabitants of such places can- 
not exercise any civil or political privileges under the laws 
of the state in which such places may be, because they are 
not bound by those laws. 3 

The last of the powers enumerated in the eighth section 
of the first article of the federal constitution, is the power * 246 1^ i 
'To make all laws which shall be necessary and proper for , ,,, , 
carrying into execution the foregoing powers, and all other etc> 
powers vested by this constitution in the government of 
the United States, or in any department or officer thereof/ 

It is hardly necessary to add to what was formerly said 
concerning this clause. 4 I therefore pass to the powers con- 
ferred upon congress by other clauses of the constitution. 



247. Con- 



Section third of the third article, provides that t congress 

JThe Federalist, No. 43, pp. 199, 200. cerning trea- 

2 See Cohens v. Virginia, 6 Wheat. 426, 429. son - 

3 1 Kent's Com. * 430-431. 
4 See £ 145, ante. 



328 POLITICAL AND CONSTITUTIONAL LAW 

shall have power to declare the punishment of treason; but 
no attainder of treason shall work corruption of blood, or 
forfeiture, excej>t during the life of the person attainted/ 
The definition of treason is not left to congress, but imme- 
diately prefixed to the grant of power to punish the offence. 
? Treason against the United States shall consist only in 
levying war against them, or in adhering to their enemies, 
giving them aid and comfort.' The same definition of the 
offence, as against a state, is generally given in the state 
constitutions. Treason, then, against a state, is not, neces- 
sarily, treason against the United States. 1 The power of 
congress over the subject, is limited to the punishment of 
the offence as against 'them,' that is, as against the United 
States. It should here be noticed, that there is no such 
thing as treason against 'the nation/ — a thing unknown 
to our constitutions. Against the United States, treason 
may doubtless be committed : for surely, they are no less 
sovereign collectively, than they are individually. The 
common government should therefore be enabled to punish 
the offence, as constitutionally defined. The reason of the 
constitutional definition, is given by The Federalist. 'It 
was to guard against new fangled and artificial treasons/ 
which ' have been the great engines by which violent fac- 
tions, the natural offspring of free governments, have 
usually wreaked their alternate malignity on each other/ 
The framers of the federal constitution wisely sought to 
* oppose a barrier to this peculiar danger, by inserting a 
constitutional definition of the crime, fixing the proof 
necessary for conviction of it, and restraining congress, 
even in punishing it, from extending the consequences of 
guilt beyond the person of its author/ 2 

? 248 The ^5 T sec tion third of article fourth, 'New states may be 

power to ad- admitted by congress into this Union i but no new state 

mit new states shall be formed or erected within the jurisdiction of any 

other state, nor any state be formed by the junction of two 

or more states, or parts of states, without the consent of 

1 1 Kent's Com. * 403 in note. 
2 The Federalist, No. 43, p. 200. 



OF THE UNITED STATES. 329 

the legislatures of the states concerned, as well as of con- 
gress/ 

In view of the imperial or absolutist theory, this is a 
most remarkable grant of power. 'New states may be 
admitted by congress into this Union.' Why ! this is a 
Union of the American people? The clause should have 
read — 'The One United State of America may be divided 
into as many separate and independent states as congress 
shall see proper; and such states may be from time to time 
disorganized and reconstructed, as congress shall deem 
expedient/ 

In the articles of confederation, no provision is found on 
this important subject. Canada was to be admitted of 
right, on her joining in the measures of the United States; 
and the other colonies, by which were evidenly meant, the 
other British colonies, at the discretion of nine states. 
The eventual establishment of new states, seems to have 
been overlooked by the compilers of that instrument. 
The inconvenience of this omission, induced the framers 
of the new system to supply the defect. The general pre- 
caution, that no new states shall be formed without the 
concurrence of the federal authority, and that of the states 
concerned, is consonant to the principles which ought 
to govern such transactions. The particular precaution 
against the erection of new states by the partition of a 
state, without its consent, quieted the jealousy of the larger 
states; as that of the smaller was quieted by a like pre- 
caution against a junction of states, without their consent. 1 

By the same section of the federal constitution, 2 ' Con- g 249. Pow- 
gress shall have power to dispose of and make all needful er to govern 
rules and regulations respecting the territory or other territories, etc 
property belonging to the United States; and nothing in 
this Constitution shall be so construed as to prejudice any 
claims of the United States or of any particular state/ 

Concerning this, 'The Federalist' simply remarks, that 
* the power is of very great importance, and required by 

1 The Federalist, No. 43, p. 200-201. 
* Art. iv. 2 3. 






330 POLITICAL AND CONSTITUTIONAL LAW 

considerations similar to those which show the propriety 
of the former -/ that 'the proviso annexed, is proper in 
itself, and was probably rendered absolutely necessary by 
jealousies and questions concerning the western territory 
sufficiently known to the public/ l 

So far as concerns the territories, the clause was once 
construed as solely applying to those which were granted 
to the United States by the several states, prior to the 
adoption of the present constitution. 2 But that was a. 
strained construction. Upon the same principle, the ap- 
plication of the clause should be confined, respecting e other 
property belonging to the United States/ to such other 
property as was held by them under the old confedera- 
tion. Territory or property since then acquired, would 
have to be governed by virtue of some other power. No 
reason appears for this distinction. The more obvious, 
natural, and legitimate construction, — considering that the 
object is one of common and equal importance to all the 
states, — is, that the power applies to all the territory, or 
other property, at any time belonging to the United 
States. 3 

1 250. Guar- The fourth section of the fourth article provides, that 
antyofrepub- < The United States shall guaranty to every state in this. 
ican form ot "Union a republican form of government, and shall pro- 
~. ' tect each of them against invasion; and, on application of 

the legislature, or of the executive (when the legislature 
cannot be convened), against domestic violence/ This 
does not, in terms, confer any power upon congress; nor 
upon any department of the federal government. It says 
' The United States shall/ etc. The question may there- 
fore arise as to the power of congress, or any branch of 
the government of the United States, under this provision. 
It does not say that the government of the United States 
shall guaranty, etc. But how could the United States 

!The Federalist, No. 43, p. 201. 

2 See Scott v. Sandford, 19 How. U. S. R. 393. 

3 See the opinion of the court by Chief Justice Marshall in the Insur- 
ance Co. v. Cannter, 1 Pet. 511. 






OF THE UNITED STATES. 331 

otherwise act than through and by means of their federal 
government ? Could they form an alliance for the pre- 
servation of each as occasion should occur ? Was not their 
power in this respect forever extinguished by this very 
guaranty which all gave to each ? Here, then, we have 
an instance of authority conferred on the federal govern- 
ment by unavoidable implication! But on which depart- 
ment of that government ? The judicial department, from 
its very constitution, is incompetent to the action that may 
be required. The authority must therefore be vested in 
the president, in congress, or in both. Is legislative action 
unavoidably necessary ? If not, the authority therefor 
cannot be implied. So far as concerns protection against 
invasion or domestic violence, no other power than that 
of the executive can ever become necessary. And what 
sort of guaranty of a form of government can congres- 
sional legislation effect? To 'ordain and establish' the 
form of government is the sovereign prerogative of ' the 
people ' of each state. To * guaranty' it, is a very different 
thing; and can mean nothing more than to assure its con- 
tinued existence. This cannot be done by extraneous 
legislation. No power is therefore conferred upon the 
federal legislature by this provision. The language is not 
that ' congress shall define what constitutes a republican 
form of government, and establish and guaranty the same 
to every state in the union/ To have vested a power of 
this nature in congress, or in any department of the federal 
government, would have made it simply omnipotent — 
would have been equivalent to a complete alienation of 
the inalienable sovereignty of the people ! To determine, 
ordain, and establish the form of government, is to exer- 
cise the absolute sovereignty; and this no government can 
do on this side of the Atlantic. 

Of the provision in question, < The Federalist ' says : c In g 251." Ob- 
a confederacy, founded on republican principles, and com- ject of the- 
posed of republican members, the superintending govern- guaranty. 
ment ought clearly to possess authority to defend the sys- 
tem against aristocratic or monarchical innovations. The 



332 POLITICAL AND CONSTITUTIONAL LAW 

more intimate the nature of such a union may be, the 
greater interest have the members in the political institu- 
tions of each other; and the greater right to insist, that 

THE FORMS OF GOVERNMENT UNDER WHICH THE COMPACT WAS 

entered into, should be substantially maintained/ This, 
then, was the object of the guaranty, 'that the forms of 
government under which the compact was entered into, should 
be substantially maintained.' 1 

'It may possibly be asked, what need there could be of 
such a precaution, and whether it may not become a pre- 
text for alterations in the state governments without the 
concurrence of the states themselves. These questions 
admit of ready answers. If the interposition of the gen- 
eral government should not be needed, the provision for 
such an event will be a harmless superfluity only in the 
constitution. But who can say, what experiments maybe 
produced, by the caprice of particular states, by the ambi- 
tion of enterprising leaders, or by the intrigues and influ- 
ence of foreign powers ? To the second question it may 
be answered, that if the general government should inter- 
pose by virtue of this constitutional authority, it will be 
of course bound to pursue the authority. But the author- 
ity extends no further than to a guaranty of a republican 
form of government ; which supposes a pre-existing govern- 
ment of the form which is to be guaranteed. As long, therefore, 
as the existing republican forms are continued by the states, 
they are guaranteed by the federal constitution. When- 
ever the states may choose to substitute other republican 
forms, they have a right to do so, and to claim the federal 
guaranty for the latter. The only restriction imposed on 
them is, that they shall not exchange republican for anti- 
republican constitutions : a restriction which, it is presumed, 
will hardly be considered as a grivance/ 2 

1 The inordinate pride of state importance has suggested 
to some minds an objection to the principle of a guaranty 
in the federal government, as involving an officious inter- 
ference in the domestic concerns of the members. A 

1 The Federalist, No. 43, p. 201. 

2 Id. pp. 201-202. Per Madison. 



OF THE UNITED STATES. 333 

scruple of this kind would deprive us of one of the princi- 
pal advantages to be expected from union ; and can only 
flow from a misapprehension of the nature of the provision 
itself. It could be no impediment to reforms of the state 
constitutions by a majority of the people, in a legal and 
peaceable mode. This right would remain undiminished. 
The guaranty could only operate against changes to be effected 
by violence.' 1 

The legislative power, — first, of the people, next, of g 252. 
the state legislatures, and lastly of congress, — has now 
been examined as fully as consistent with the design of 
this work. By whom, in what way, and by what proceed- 
ings, our political constitutions were ordained and estab- 
lished, we have seen. In the ratifications of the federal 
constitution, and the system of government and the rela- 
tions of the people thereby established, we have traced the 
acts of the sovereign, supreme and uncontrollable power, 
to the several states themselves. The nature and extent 
of the delegated powers of legislation, state and federal, 
we have also reviewed. It will now be our business to 
examine the judicial power. 



(2 c a) OF THE JUDICIAL POWEE: AND HEREIN, FIRST 
(1/6) OF THE JUDICIAL POWER OF THE PEOPLE. 

The highest ofiice that a man can fill is that of a sover- * 2 53. High 
eign and supreme judge not only of the makers of the court of the 
law but also of the judges themselves. Yet this is an sovereigns, 
office which every American elector enjoys by virtue of 
the constitution of his state j and to the final judgment 
of the people, the highest officers of the state, as well as 
the lowest, even the judges of the supreme courts of the 
land, are bound to conform. In all free countries, public 
opinion must eventually prevail; and every individual, 

1 The Federalist, No. 21, pp. 93-94. Hamilton. 



334 POLITICAL AND CONSTITUTIONAL LAW 

whatever his station, contributes in a greater or lesser de- 
gree, to the all-controlling expression of the popular mind. 
'Not all, it is true, are entitled to equal participation in the 
resolutions of the sovereign will, but each enjoys, by 
natural right, a voice in the popular deliberations which 
always precede those resolutions. 

% 254. On primary grounds, all men being equal in right, the 

opinion or judgment of one is of equal authority with that 
of another; and therefore all are equally entitled to de- 
cide upon matters of common concern. In this consists 
the natural sovereignty of men as members of society. 
But the very institution of the political state puts an end 
to this natural equality : a thing which exists and has al- 
ways existed in theory only. A political union of individ- 
uals is clearly impossible, unless upon the basis of an or- 
ganic law which determines and fixes the qualifications of 
the members who are to exercise political power, and there- 
fore discriminates between them concerning their capacities 
for political rights. The natural sovereignty of human so- 
ciety can find expression only in the institution of political 
states. It does not cease to exist on account of political 
organizations, but as finding its only legitimate expression 
in and through them, it undergoes a change of character, 
.and becomes political sovereignty. .As such, in all free 
states, it resides in those who are clothed with the right 
of suffrage, by the organic law. These act throughout 
by their own authority, and acknowledge no superior; 
whether they act in the name of ' the people/ in the name 
of the voters or electors, or in that of the state. In fact, 
not all mankind are equally competent to give expression 
to the natural and original sovereignty in which all alike 
participate. The sovereign right to give the legitimate 
and all-controlling expression to this natural sovereignty, 
can therefore only reside in such as possess the qualifica- 
tions required by the fundamental law of the state. Who- 
ever has ears to hear and a tongue to speak, will exert, as 
of course, his share of influence on all the deliberations 
of the sovereign court of final resort. But the judgment 



OF THE UNITED STATES. 335 

-or decree of this court cannot be pronounced by any but 
the constitutional sovereigns themselves. Upon them, 
therefore, the preservation and maintenance of our liber- 
ties, and of all that we esteem, must finally depend. They 
are clothed with the absolute sovereignty of their politi- 
cal state ; and therefore no limit to their power of final 
decision, or their power to make and interpret our organic 
law, or their power to enforce its observance, can ever be 
fixed except by themselves. The absolute sovereignty of 
.a state, however, as formerly observed, is absolute only in 
respect of its own internal self-government, and its equal 
voice in relation to matters in which others with itself are 
equally concerned. For it must be admitted as a political 
axiom in our system, that an absolutely final decision on a 
matter of common concern can only be made by a consti- 
tutional majority; that is, on a matter of common concern 
to all the people of a state, by such a majority as their con- 
stitution requires; on a matter of common concern to all 
the states, by such a majority of the states as is fixed by 
the federal constitution for amendments thereof. 

The government of a state, as well as the government of 
the United States, must judge, in the first instance, of the 
proper exercise of its powers; and its constituents, in the 
last. If the one or the other should overpass the just 
Abounds of its authority and make a tyrannical use of its 
powers, ' the people/ whose creature it is, must appeal to 
the standard they have formed and take such measures to 
redress the injury done to the constitution, as the exigency 
may suggest and prudence justify. 1 



>(2/ b) OF THE JUDICIAL POWER OF THE STATE COURTS. 

In the course of our investigations, we are now to con- 
• n • • 1 • & 255. (jtGH- 

sider the power of interpreting, expounding, construing eral nature f 

-and applying the law, whether organic, statutory, or com- the power. 

mon, so far as the power is vested in the courts of the sev- 

•eral states. Our attention is directed, first, to the general 

1 The Federalist, No. 33, p. 144. Hamilton. 



336 POLITICAL AND CONSTITUTIONAL LAW 

nature and extent of this power; and secondly, to the sev- 
eral kinds of courts in which it is vested. 

OF THE GENERAL NATURE AND EXTENT OF THE POWER. The 

one grand object of every investigation, whether judicial 
or extra-judicial, is to arrive at a true and correct judg- 
ment concerning the subject-matter of investigation. In 
order to any such judgment, however, the true relations of 
facts, involving their relations to law, must be ascertained. 
The first great duty of a judge, therefore, is to hear the 
allegations and the evidence of the facts. Two judgments, 
indeed, must always be formed, and finally merged in a 
single one. A judgment respecting the truth of the facts, 
is the first thing in order; a judgment of the law, as appli- 
cable thereto, is thence to follow. Hence, in courts pur- 
suing the method of trial by jury, this business of arriving 
at a final judgment, is divided; the jury are the judge of 
the facts; the court, of the law as applicable to them; and 
these two judgments, the verdict of the jury and the opinion 
of the court, are brought to an agreement in the formal 
judgment entered by the court. Even in courts proceeding 
without the intervention of a jury, essentially the same 
course is pursued; a judgment of the facts and a judgment 
of the law concur in one: which final judgment, as the 
basis of process of execution, is the one great object of the 
investigation. 

It is therefore evident that the judicial power is neither 
a legislative nor an executive power. Each of these pow- 
executive. ers is properly limited to one grand object. To prescribe 
the law is the object of the legislature. To construe 
it, to judge of its true application to cases as they arise, is 
the object of the judiciary, and the next thing in order, as 
necessarily prior to the proper execution of the law; and 
when judgment is finally pronounced, and execution di- 
rected in accordance with law, the object of judicial in- 
vestigation is attained and the office of the judge at an 
end. 1 The proper office of the executive power, is neither 

1 On the power of the courts to make rules respecting the practice 
therein, see 6 Pet. Cond. Rep. 15, et seq. The" question involved is 
this — May the legislature delegate its trust ? 



§256. Not 



OF THE UNITED STATES. 337 

to make nor expound, but to execute the law, as made and 
expounded. 

Executive officers, consequently, in all cases, must base 
their action upon legal judgments. But in many cases, 
such judgments are pronounced by their legal advisers, or 
else by themselves ) and not by the courts in the first in- 
stance. A judicial power or discretion is often vested in 
executive officers, and even in legislative bodies. The 
one great object of the power, hoAvever, is always the same, 
in whatever hands it may happen to be placed. Whoever 
pronounces the judgment of the law, exercises the judicial 
power. It is not the name of the department of govern- 
ment, in which the power is vested, that determines the 
character of the power. 

It is, as we have seen, a favorite principle of our consti- g 257. Three 
tutions, that the legislative, judicial, and executive powers, powers dis- 
shall be kept apart, separate and distinct ; that the officers tinct - 
entrusted with any one, shall not be entrusted with any 
other. ~No political principle is of greater intrinsic value, 
or is stamped with the authority of more enlightened 
patrons of liberty. The accumulation of all powers, legis- 
lative, judicial, and executive, in the same hands, whether 
of one, a few, or many, and whether hereditary, self-ap- 
pointed, or elective, may justly be pronounced the very 
definition of tyranny. 1 Montesquieu says, that the politi- 
cal liberty of the citizen consists in a tranquillity of mind 
arising from the opinion each person has of his safety; and 
that in order to have this liberty, it is requisite that the 
government be so constituted that one needs not to be 
afraid of another. Now, says he, if the legislative and 
executive powers are united either in one and the same 
person or in one and the same body of magistrates, there 
can be no political liberty ; because apprehensions and 
fears may arise, lest that person, or that body, should 
enact tyrannical laws, and execute them in a tyrannical man- 
ner. Again, he says, there is no liberty if the judiciary 
power be not separated from the legislative and executive. 

1 The Federalist, No. 47. 

V 



338 POLITICAL AND CONSTITUTIONAL LAW 

Were it joined with the legislative, the life and liberty of 
the citizen would be exposed to arbitrary control : for the 
judge would then be the legislator. Were it joined to the 
executive power, the judge might behave with violence 
and oppression. There would be an end of everything, 
were the same man, or the same body, to exercise these three 
powers j that of enacting laws, that of trying the causes of 
individuals, and that of executing the public resolutions. 1 
History is full of examples of political systems, in which 
the want of a proper division of the principal powers of 
government, was the prime defect. Nothing indeed is so 
difficult to accomplish, in the framing of organic laws or 
political constitutions, as the perfect balancing and coun- 
ter balancing of the several powers, legislative, judicial, 
and executive. Yet nothing has ever so much contributed 
to the security of the liberties of the people, as the separ- 
ate organization and distribution of these three powers, 
upon such a basis, and in such a manner, as that their co- 
existence, co-independence, and co-operation, cannot but 
result from the mere exertion of each within its appointed 
sphere, and effectually guard and protect the people against 
that silent and gradual absorption of their liberties, toward 
which, because of the encroaching nature of political power 
and the constant growth and expansion of precedent, all 
governments alike must tend. 

s 258 Ne- ^ ne P r i nc ipl e requiring that the three great powers of 

cessity of an government be vested in separate departments, or in dif- 

independent ferent bodies, does not require that they be wholly uncon- 

judiciary. nected with each other; 2 it simply requires, that they be 

so divided and balanced among the several bodies of 

magistracy, as that no one can transcend its constitutional 

limits, without being effectually checked and restrained 

by the others. 3 The object is, to secure the independence 

of each, and thereby make it a check upon, and a protec- 

1 Spirit of Laws, b. xi, c. 6 ; 1 Bl. Com. 146. 

2 See The Federalist, Nos. 47 and 48, where this principle is fully ex- 
amined. 

3 Id. See also JefFerson's Notes on the State of Virginia, p. 195. 



OF THE UNITED STATES. 339 

tion to the people against, usurpations by the others. Yet, 
if it belongs to the courts to expound and construe the 
law, as it unquestionably does, then to them it belongs to 
decide all questions respecting the spheres and limits of 
the other departments, as well as of the sphere and limit 
of the judicial department. Hence nothing can be more 
important than an independent judiciary. The independ- 
ence of the judiciary, is the only ultimate security of the 
people. It is only to courts, empowered to declare legis- 
lation void when not in conformity with the constitution, 
and to judge of violations and infractions of law, that the 
^people can finally look for protection, whether as against 
the acts of public officials, or as against the acts of private 
individuals. If therefore the judges be not independent, 
no well founded hope for a due administration of govern- 
ment, in accordance with organic laws and acknowledged 
principles of justice, can be entertained. 1 

The judicial power of a state, must of necessity be co- * 2 59. Ex- 
extensive with the operation of its own constitution and tent of the 
laws, or else the organic, and all other law, must become judicial power 
a mere nullity, for want of a competent power to construe of t]ae states - 
and expound it, and to render a legitimate judgment in ac- 
cordance with it. No limit can therefore be set to the ju- 
dicial power of a state, except so far as it is bounded by 
the judicial power of the United States; which, by the 
federal constitution, is declared to i extend to all cases, in 
law and equity, arising under that constitution, the laws 
of the United States, and treaties made or which shall be 
made under their authority ; to all cases affecting ambas- 
sadors, other public ministers and consuls ; to all cases of 
.admiralty and maritime jurisdiction; to controversies to 
which the United States shall be a party; to controversies 
between two or more states ; between a state and citizens 
of another state ; between citizens of different states ; be- 
tween citizens of the same state claiming lands under 
grants of different states, and between a state or a citizen 

1 On the vast importance of an independent judiciary, see The Feder- 
alist, No. 78, pp. 356-360. 



340 POLITICAL AND CONSTITUTIONAL LAW 

thereof, and foreign states, citizens or subjects/ 1 The ju- 
dicial power of a state must therefore extend to all other 
cases ; and, by the eleventh amendment, even to suits in 
law or equity, commenced or prosecuted against the state 
by citizens of another state, or by citizens or subjects of 
any foreign state. 2 

I 260. Con- Some of the cases enumerated, as within the federal 

current juris- judicial power, are also within the judicial power of the- 

ic ion o g^tes. rph e federal and state iudiciary have a concurrent 
state and fed- ..,.,. _ . , . , . . 

eral iudiciary. jurisdiction of 'controversies between a state and citizens 

of another state; between citizens of different states;. 
between citizens of the same state claiming lands un- 
der grants of different states; and between a state or 
a citizen thereof, and foreign states, citizens or sub- 
jects:' except as to suits in law or equity, commenced 
or prosecuted against a state by citizens of another state r 
or by citizens or subjects of any foreign state; as to which 

1 Const. U. S. Art. nr, § 2. See Cohens v. Virginia, 5 Pet. Cond. R. 
U. S. 107, et seq.; 6 Wheat. 264. 

2 On this Amendment see 5 Pet. Cond. 116, et seq. While weigh- 
ing arguments drawn from the nature of government and from the 
general spirit of the organic law, and urged for the purpose of nar- 
rowing the construction which the words of that law seem to require, it 
is proper to place in the opposite scale, those principles drawn from the 
same sources and which go to sustain the words in their full operation 
and natural import. One of these principles is, that the judicial power 
of every well-constituted government must be co-extensive with the legis- 
lative, and must be capable of deciding every judicial question which 
grows out of the constitution and law. If any proposition may be con- 
sidered as a political axiom, this, we think, may be so considered. In 
reasoning upon it as an abstract question, there would, probably, exist 
no contrariety of opinion respecting it. Every argument proving the 
necessity of the judicial department, proves also the propriety of giving 
this extent to it. We do not mean to say, that the jurisdiction of the 
courts of the Union should be construed to be co-extensive with the 
legislative, merely because it is fit that it should be so; but we mean to 
say, that this fitness furnishes an argument in construing the constitu- 
tion which ought never to be overlooked, and which is most especially 
entitled to consideration, when we are inquiring, whether the words of 
the instrument which purport to establish this principle shall be con- 
tracted for the purpose of destroying it. Per Marshall, C. J., in Coh- 
ens v. Virginia, 5 Cond. R. U. S. 103, 104; 6 Wheat. 264. 



OF THE UNITED STATES. 341 

•suits, federal jurisdiction is denied by the eleventh amend- 
ment. In cases of which the federal judiciary has not 
exclusive jurisdiction, that judiciary wields a power which 
■does not belong to it of necessity, but one which belongs 
to the state judiciary also; a power relating entirely to 
state laws, to rights and duties flowing from state legisla- 
tion. For which reason, the federal jurisdiction is not 
supreme ; the decisions of the federal courts, in such cases, 
are not binding on the courts of the states; the former are 
not interpreting or enforcing the law of the United States 
in any of its forms, but assuming to expound and apply the 
law of the particular state in which the controversy arose. 
The practice of the Supreme Court of the United States 
is therefore firmly settled, that in all controversies falling 
within this department of their jurisdiction, they will follow 
the statutes and authoritative decisions of the local courts 
which have defined and established the law of the com- 
monwealth where the cause of action arose. 1 The judges 
of that court cannot be expected to be fully and particu- 
larly acquainted with all the statutes and local usages and 
customs and judicial decisions which go to make up the 
law of a state; and they themselves have held, that each 
state judiciary is presumed to best know its own law, and 
is the appropriate organ to expound and settle it. 2 They 
therefore not only follow, but change with, the state law. 3 

Or THE SEVERAL KINDS OF STATE COURTS. It will not be g 261. Ne- 

-expected in a work of this nature, that the various courts cessity of 
of the different states be treated of with any degree of par- courts, 
ticularity. Only their general character will here be no- 

1 Pomeroy's Const. Law, g 759 — referring to Luther v. Borden, 7 
Bow. 1; Phalen v. Virginia, 8 Id. 163; Webster v. Cooper, 14 Id. 504; 
Beauregard v. New Orleans, 18 Id. 497 ; Gelpcke v. Dubuque, Y u Wal- 
lace, 175. 

2 See Elmendorf v. Taylor, 10 Wheat.; Bell v. Morrison, 1 Pet. 359, 360. 

3 Green v. Neal, 6 Pet. 301. Upon this subject, see the cases referred 
to. See also, Hinde v. Vattier, 5 Pet. 398 ; Cathcart v. Kobinson, Id. 
:264 ; Jackson v. Chew, 12 Wheat 153 ; Daly v. James, 8 Wheat. 535 ; 
Blight's Lessee v. Rochester, 7 Wheat. 550; Leage v. Egery, 24 How. 
U. S. 264; Suydam V.Williamson, 24 How. U. S. 427; Gelpcke v. 
Dubuque, 1 Wallace, 206 ; Olcott v. Supervisors, 16 Wallace, 678. 



342 POLITICAL AND CONSTITUTIONAL LAW 

ticed : premising, however, that as misunderstandings be- 
tween individuals will always arise with respect to the 
meaning and requirements of the law in particular cases y 
there will always exist a positive necessity for courts of 
justice; wherein competent judges, persons distinguished 
and therefore selected for their wisdom and learning in 
the law, are clothed with authority to expound and apply 
it as cases arise. 

\ 262. Gen- A court, according to Blackstone, 1 is a place where justice 
eral character j g judicially administered. For the speedy and impartial 
administration of justice, each state has established a pro- 
digious variety of courts, some with a more limited, others 
with a more extensive jurisdiction; some constituted to 
inquire only, others to hear and determine ; some to de- 
termine in the first instance, others upon appeal and by 
way of review. There is one distinction, however, that 
runs throughout them all: viz. that some of them are courts 
of record, others not of record. A court of record is that y 
where the acts and judicial proceedings are enrolled in 
paper or parchment for a perpetual memorial and testi- 
mony : which rolls are called the records of the court, and 
are of such high and super-eminent authority, that their 
truth is not to be called in question. For it is a settled 
maxim that nothing shall be averred against a record, nor 
shall any plea, or even proof, be admitted to the contrary. 
And if the existence of a record be denied, it shall be tried 
by nothing but itself: that is, upon bare inspection whether 
there be any such record or no; else there would be no 
end of disputes. But if there appear any mistake of the 
clerk in making up such record, the court will direct him 
to amend it. 2 

| 263. Con- I* 1 every court, there, must be at least three constituent 

stituents of a parts ; the actor, or plaintiff, who complains of an injury 

court. done; the reus, or defendant, who is called upon to make 

satisfaction for it; and the judex, or judicial power, which 

^Bl. Com. 23. 
2 Id. 24. 



OF THE UNITED STATES. 343 

is to examine the truth of the fact, to determine the law 
arising upon that fact, and, if any injury appears to have 
been done, to ascertain, and by its officers to apply, the 
remedy. 1 

The office of judge, in the state courts, is now very gen- 
erally filled by popular election from the ranks of the legal 
profession ; although the legal fitness of the person for the 
office is considered as of less importance than his known 
adherence to the dominant political party. 2 

It is also usual, in the superior courts, to have attorneys, \ 264. At- 
advocates or counsel, as assistants. An attorney at law is torneys and 
one who is put in the place, stead or turn of another, to counseuors - 
manage his matters at law. 3 The law requires that each 
particular case should be presented to the proper tribunal, 
agreeably to the rules and forms prescribed for the class of 
cases to which it belongs ; and since it is hardly possible 
that all persons alike can be skilled in the law and the 
rules of its application, it is doubtless proper that there 
should be, in every community, a number who make the 
study and practice of the law their special vocation and 
profession, and who are therefore able to counsel such as 
incline to litigation. Some excellent people there seem to 
be, who look upon lawyers as the pests of society : un- 
mindful of the fact, perhaps, that to that very body of 
men, they owe that security of life, liberty and property,, 
which they so happily enjoy, by means of a science, too, 
which, to have cherished, cultivated, and, in a high degree, 
to have perfected, is the honor and glory of the profession 
of the law. A court comprised of the most distinguished 
jurists will be liable to make contradictory decisions, with- 

1 3 Bl. Com. 26. 

2 Nor is the selection of a judge, in this country, with reference to his- 
political creed, to be wholly condemned. For his exposition and appli- 
cation of the law, upon all political questions, must favor the one or the 
other of those theories and constructions of our organic law, to which 
our attention has formerly been directed; and it may be the will of the 
people, that is, of the sovereign, that the one of those constructions shall 
be favored to the exclusion of the other. 

3 3 Bl. Com. 26. 



344 POLITICAL AND CONSTITUTIONAL LAW 

out the aid of an enlightened bar, faithful to their trust; 
the counsel must present the case to the court, investigate 
the principles on which it depends, produce authorities, 
and trace out the analogies of the law, or the court are not 
responsible for a correct decision. This is most emphat- 
ically true under the present organization of our courts. 1 
The enlightened part of the bar, are therefore called upon 
by that attachment to the principles of political and civil 
liberty, for which the profession have ever been distin- 
guished in all free governments, to be indefatigable in dis- 
charging the duties of their high and responsible trust. 2 

\ 265. State The judicial powers of the states are vested in a variety 
courts various f tribunals, in supreme courts, courts of errors and ap- 
peals, superior courts, chancery courts, circuit and district 
courts, courts of common pleas, orphan's courts, courts of 
oyer and terminer, of general sessions of the peace and 
jail delivery, registers courts, corporation or municipal 
courts, justices of the peace, and a variety of others. 3 The 
distribution of the judicial power is hardly the same in 
any two states of the union. In each of the states, how- 
ever, a supreme judicial tribunal, a court of last resort, is 
established by the constitution, for the final decision of all 
questions arising under the laws of the state. The neces- 
sity and design of such a court, in each of the states, can- 
not but be evident. A variety of courts must lead to a 
variety of decisions upon the very same points. To pre- 
serve the uniformity and harmony of the law, in which 
consists its authority, the decisions of the inferior courts 
must be subject to review and correction, by a court of 
final jurisdiction in cases of error and appeal. 

1 See 2 Penna. Kep. 65. 

2 Chipman on Cont. Introd. p. 10. 

3 The constitution and laws of each state must here be consulted. 



OP THE UNITED STATES. 345 



(3/5) OF THE JUDICIAL POWER OF THE FEDERAL COURTS : 
AND HEREIN, FHtST 

(1 g e) OF THE EXTENT OF THAT POWER. 

The powers which are delegated by the federal consti- \ 266. Enu- 
tution, are, as we have seen, all of them specific and merated cases 
enumerated powers. Thus, by that constitution, the judi- ° W , 1C 1 
cial power is declared to extend to certain cases therein 
mentioned; namely, — 'to all cases, in law and equity, 
arising under that constitution, the laws of the United 
States, and treaties made or which shall be made under 
their authority ; to all cases affecting ambassadors, other 
public ministers, and consuls ; to all cases of admiralty and 
maritime jurisdiction; to controversies to which the 
United States shall be a party; to controversies between 
two or more states, between a state and citizens of another 
-state; between citizens of different states; between citizens 
of the same state claiming lands under grants of different 
states ; and between a state or a citizen thereof, and for- 
eign states, citizens or subjects.' 1 

By this enumeration, all other cases and controversies 
are excluded from the jurisdiction of the courts of the 
United States. 2 The jurisdiction of those courts is further 
limited by the eleventh amendment; which provides that 
4 The judicial power of the United States shall not be con- 
strued to extend to any suit in law or equity, commenced 
or prosecuted against one of the United States by citizens 
of another state, or by citizens or subjects of any foreign 
state/ 

The federal judicial authority, then, as it concerns a g 267. The 
given case, should be examined with reference to, first, the judicial power 
laws under which the case arises; secondly, the parties in- co-extensive 
terested; and thirdly, the subject-matter involved. wl % e aws ' 

(1.) If a case arises under the constitution or under a law 
or a treaty of the United States, no one can doubt that it 

1 Const. U. S. Art. in, \ 2. 

2 \ 171, ante. 



346 POLITICAL AND CONSTITUTIONAL LAW 

ought to fall within the federal judicial authority. If 
there are such things as political axioms, the proposition,, 
that the judicial power of a government, whether state or 
federal, should be co-extensive with its laws, may be 
ranked among the number. But the mere necessity of 
uniformity in the interpretation of the constitution, laws, . 
and treaties of the United States, plainly requires that the 
power to interpret them be vested in the federal judic- 
iary. 1 

It is proper to observe, however, that consistently with 
its delegated authority, the federal judiciary can give no 
opinion on or interpretation of the federal constitution,, 
laws or treaties, by way of answering or deciding ques- 
tions arising outside of a case before it. It can take no 
cognizance of any case unless that case assumes the char- 
acter and form of a case in law or a case in equity. How- 
ever important a question may be, and whatever its na- 
ture or character, be it legal or political, it can never be 
authoritatively decided by the federal judiciary, except as 
it actually arises in a case at law or in equity, which is* 
regularly brought before some federal court whose juris- 
diction extends to that particular case. 

g 268. The constitution also provides, that ' In all cases affect- 

Nature and ing ambassadors,, other public ministers, and consuls, and. 
source of ju- those in which a state shall be a party, the supreme court 
nsdiction. s hall have original jurisdiction ; ' and that ' In all other cases 
before mentioned, the supreme court shall have appellate 
jurisdiction, both as to law and fact, with such exceptions^, 
and under such regulations, as congress shall make.' 2 It i& 
a settled doctrine, that the federal courts have no common 
law jurisdiction whatever, and that all their powers must 
be derived from the constitution, or from acts of congress, 
passed in pursuance thereof. 3 

1 See The Federalist, No. 80, pp. 364, 367 ; Cohens v. Virginia, 6 
Wheat. 264. 

2 Const. U. S. Art. ni, § 2. See, as to this appellate jurisdiction, Co- 
hens v. Virginia, 6 Wheat. 264. 

3 Pomeroy's Const. Law, §g 739 and 759. 



OF THE UNITED STATES. 347 

(2.) The jurisdiction of the federal judiciary is also de- \ 269. Par- 
termined, as already seen, by reference to the character of ties — Public 
the parties concerned. Thus — ministers. 

1 All cases affecting ambassadors, other public ministers, 
and consuls/ are subject to the exclusive cognizance of the 
federal judiciary. Ambassadors and other public minis- 
ters are the necessary instruments of international com- 
munication, and the representatives of the sovereigns re- 
spectively by whom commissioned. They are therefore" 
exempt, by the law of nations as now understood, from 
the jurisdiction, civil and criminal, of the governments- 
who receive them. 1 ~Nov can a foreign minister waive his 
privilege; for it is the privilege of his sovereign who sends 
him. 2 Even his attendants attached to his person, the 
effects in his use, the house in which he resides, and his 
domestic servants, are under his protection and privilege, 
and equally exempt from the local jurisdiction. 3 But if he 
be concerned in trade, his property in that trade is liable 
to seizure, as in the case of another individual. If he 
openly engage in the commission of crime, he may, from 
the necessity of the case, be resisted and restrained. There 
may, in short, be cases, in which his privileges, by the law 
of nations, must come in question. And as any decision 
affecting the privileges of public ministers, must involve 
our public international relations, the power to render 
such decision should doubtless reside in the federal, and 
not in the state judiciary. 

Consuls, it is true, are not entitled to the privileges of 
public ministers. But being commissioned by their re- 
spective governments, with a view to the protection of 
commercial interests, and being favored by the law of na- 
tions and treaties of commerce, it was thought that the 

1 Persons who infringe the laws of nations by offering violence to the 
persons of ambassadors and other public ministers, or by being con- 
cerned in prosecuting or arresting them, or even their domestic servants, 
are (under the act of congress of April 30, 1790, sees. 25, 26) liable to 
punishment, on conviction, by imprisonment, not exceeding three years, 
and fine, at the discretion of the court. 

a The United States v. Benner, 1 Baldwin's C. C. 234. 

3 Kent's Com. * 39. 



348 POLITICAL AND CONSTITUTIONAL LAW 

federal judiciary should also have exclusive jurisdiction 
of all cases affecting them. Nor is the judicial cognizance 
of ' cases affecting ambassadors, other public ministers, and 
consuls/ conferred on inferior federal courts. In all such 
cases, the constitution itself invests the Supreme Court of 
the United States with original jurisdiction. 

\ 270. Other In cases, also, where either the United States shall be a 
parties. party; or where a state shall be a party as against another 

state, or as against citizens of another state, or citizens or 
subjects of a foreign state; or where a foreign state shall 
be a party, whether as against a state or a citizen thereof; 1 
the propriety of the jurisdiction of the federal judiciary, 
cannot be questioned : however it may, or may not be, in 
controversies between citizens of different states ; or be- 
tween citizens of the same state claiming lands under 
grants of different states ; or between citizens of a state, 
and foreign citizens or subjects, in which three classes of 
controversies, the state courts also have concurrent juris- 
diction. 



•diction. 



\ 271. Ad- (3.) The subject-matter involved, may also become a cri- 
miralty juris- terion of the jurisdiction of the federal courts ; that is, 
where it is properly a subject-matter of admiralty and mari- 
time jurisdiction ; such as a maritime seizure, or a maritime 
contract or transaction, or a crime or offence, tort or injury, 
committed at sea, or on the waters of the coasts, without 
the body of any county. It has been a question, what 
were the ' cases of admiralty and maritime jurisdiction' 
within the meaning of the federal constitution. It is not 
in the power of congress to enlarge that jurisdiction be- 
yond what was understood and intended by it when the 
constitution was adopted, because it would be depriving 
the suitor of the right of trial by jury, which is secured 
to him by the constitution in suits at common law; and it 
is well known that in civil suits of admiralty and maritime 
jurisdiction, the proceedings are according to the course of 
the civil law, and without jury. 2 

1 A foreign sovereign may still sue in our state courts. The King of 
Prussia v. Kuepper, 22 Mo. 550. 2 1 Kent's Com* 372. 



OF THE UNITED STATES. 349 

The admiralty and maritime jurisdiction, intended by 
the federal constitution, was that which was known and 
ascertained in our own jurisprudence, as well as in that of 
the parent state, prior to the adoption of that constitution. 
It was not an unknown or an unascertainable jurisdiction; 
although the courts of common law, especially in England, 
had long contended for a limit to it, not acknowledged by 
the admiralty civilians; the former contending that it only 
extended to causes of a maritime nature, to things done 
on the sea without the body of any county; but the latter 
asserting their jurisdiction not only over all prizes taken 
in maritime war, and other things done on the high seas, 
but also over all maritime contracts, and all torts and in- 
juries committed in ports and havens within the ebb and 
flow of the tide, and in great streams below the first 
bridges. The broader jurisdiction was not unknown to 
the admiralty courts of the states, prior to the adoption 
of the present constitution; and as the grant is of admi- 
ralty and maritime jurisdiction, the jurisdiction claimed 
by the admiralty courts was probably intended; at all 
events, is generally well supported by our admiralty de- 
cisions. 1 



(2ge) OF THE SEVERAL COURTS OF THE UNITED STATES. 

The first section of the third article of the federal con- a 272. De- 
stitution is in these words : — l The judicial power of the tribution of 
United States shall be vested in one Supreme Court, and in the federal ju- 
such inferior courts as the congress may from time to time dlciai power, 
ordain and establish. The judges, both of the supreme 
and inferior courts, shall hold their offices during good 
behavior, and shall, at stated times, receive for their 
services, a compensation, which shall not be diminished 
during their continuance in office/ 

The distribution of the judicial power, by this section, 

1 See cases reviewed in 1 Kent's Com.* 373 et seq.; also, The Moses 
Taylor, 4 "Wallace, 411 ; The Hine v. Trevor, Id. 555 ; and fully, on this 
subject, 1 Conkling's Admiralty, ch. 1, pp. 1 to 72. 



350 POLITICAL AND CONSTITUTIONAL LAW 

should lead us to consider, first, the Supreme Court; and 
secondly, the inferior courts of the United States. 

§ 273. Sn- (1.) Op the Supreme Court of the United States. The 
peme Court, constitution, while ordaining this high court, leaves it de- 
pendent upon the action of congress for its organization. 
In this respect, the constitution may possibly be defective. 
For under its provisions, congress may organize, disorgan- 
ize and re-organize, not only the inferior courts, but the 
Supreme Court itself, the final judicial exponent of the 
organic law; — all which congress may do, at whatever 
time, and in whatever way, may chance to suit the 
party in power. If the political complexion of the court 
is not satisfactory to the dominant party, it is easy to 
increase the number of the judges, secure the appoint- 
ment of new ones, such as will yield to party behests, and 
so obtain the support of the whole judicial power, and the 
desired interpretation of the constitution. 

„ 2 „ 4 y As at present organized, the Supreme Court consists of a 
/organization, ^ief justice and eight associate justices; any six of whom 
constitute a quorum. 1 The associate justices have pre- 
cedence according to the dates of their commissions ; or 
when the commissions of two or more of them bear the 
same date, according to their ages. 2 In case of a vacancy 
in the office of chief justice, or of his inability to perform 
the duties and powers of his office, they devolve upon the 
associate justice who is first in precedence, until such dis- 
ability is removed, or another chief justice is appointed 
and duly qualified, and the same applies to every associate 
justice who succeeds to the office of chief justice. 3 

\ 275. Its The original jurisdiction of the Supremo Court, as for- 

original juris- merly observed, is confined to two classes of cases : viz. 

diction. cases affecting ambassadors, other public ministers, and 

consuls; and those in which a state shall be a party. And 

1 Act 10th April, 1869, ch. 22, \ 1 ; Revised Statutes of the U. S. \ 673. 
'Revised Statutes, of the U. S. § 674. 
3 Id, I 675, 



OP THE UNITED STATES. 351 

• even concerning the cases mentioned, the question has 
.arisen, whether or not that original judisdiction was in- 
tended to be exclusive. In the judiciary act of 1789, con- 
gress assumed that it was not so intended, and in some of 
those cases, vested concurrent jurisdiction in the circuit 
courts. 1 It is clear, however, that congress has no authority 
to give to the Supreme Court appellate jurisdiction where 
the constitution has declared that its jurisdiction shall be 
original, or to give it original jurisdiction where the con- 

. stitution has declared it shall be appellate. 2 The cases in 
which the court shall have original jurisdiction, could not 
have been stated in plainer terms. They are such as may 
not very frequently occur. In all other cases of federal 
cognizance, the inferior courts have orignal jurisdiction ; 
and the Supreme Court, only an appellate jurisdiction, 
with such exceptions and under such regulations as con- 
gress shall make. 3 It is therefore the appellate jurisdic- 
tion of this court that clothes it with most of its dignity 
and efficiency, and renders it a constant object of attention 

1 Act of September 24th, 1789, g 13. In which connection, see The 
United States v. Kavara, 2 Dall. 297 ; Marbury v. Madison, 1 Cranch, 
"137; The United States v. Ortega, 11 Wheat. 467. 

2 Marbury v. Madison, 1 Cranch, 137. The Judiciary Act, § 13, had 
authorized the Supreme Court to issue writs of mandamus in cases war- 
ranted by the principles and usages of law, to any courts appointed by, 
or persons holding office under, the authority of the United States; but 
the court was of opinion that the act was unwarranted by the constitu- 
tion, so far as it authorized the issuing of a mandamus in this case, to 
the secretary of state ; because the issuing of the writ in this case would 
be an exercise of original jurisdiction not within the constitution, and 

• congress had not power to give original jurisdiction to the Supreme 
Court in other cases than those described in the constitution. It fol- 
lowed, that to enable the court to issue a mandamus, it must be shown 
to be an exercise, or necessary to an exercise, of its appellate jurisdiction. 

"The case decided, that the official acts of the heads of the executive de- 
partment, as organs of the president, which are of a political nature, and 
rest, under the constitution and laws, in executive discretion, are not 
within judicial cognizance. But when duties are imposed upon such 
heads, affecting the rights of individuals, and which the president cannot 
lawfully forbid, — as, for instance, to record a patent, or furnish the copy 
-of a record, — the person, in that case, is the officer of the law, and amen- 
dable thereto, in the ordinary course of justice. Id. 170, 171. 

3 Const. U. S. Art.iij, g .2. 



352 POLITICAL AND CONSTITUTIONAL LAW 

and solicitude on the part of the governments and the peo- 
ple of the states. 1 

\ 276. Ap- < The constitution defines the jurisdiction of none but 
pellate juris- ^g s U p reme Court. Of that court it is said, after giving it 
a very limited original jurisdiction, that "in all other 
cases before mentioned, the Supreme Court shall have ap- 
pellate jurisdiction both as to law and fact, with such ex- 
ceptions and under such regulations as the congress may 
prescribe." This latter clause has been the subject of 
construction in this court many times, and the uniform 
and established doctrine is, that congress having by the 
act of 1789 defined and regulated this jurisdiction in cer- 
tain classes of cases, this affirmative expression of the 
will of that body is to be taken as excepting all other 
cases to which the judicial power of the United States ex- 
tends, than those enumerated/ 2 

\ 277. Eel- It may, however, in general be said,, that the Supreme 
ative to infe- Court is now invested, by the several acts of congress on 
nor federal ^g subject with all the powers that can be vested in it r 
pursuant to the constitution, as a court of last resort. 3 It 
is not perhaps too much to say, that, generally speaking,, 
its power of revision extends to the final judgments and 
decrees of all the federal inferior tribunals. 4 

I 278. Eel- In some cases, also, this court may review the final de- 
ative to state cisions of the highest tribunals of the states. These cases 
courts. are ^ - n g enera ]_ terms, where is drawn in question the va- 

lidity of a treaty, statute, or authority of the United 
States, and the decision is against it \ or where is drawn 

1 1 Kent's Com. *315. 

2 Per Mr. Justice Miller, delivering the opinion of the Supreme Court 
in Murdock v. City of Memphis, 20 "Wall. 620, and citing "Wiscart v. 
Dauchy, 3 Dallas, 321 ; Durousseau v. United States, 6 Cranch. 307 ; The 
Lucy, 8 Wallace, 307 ; Ex parte McCardle, 6 Id. 318; s. c. 7 Id. 506. 

3 See Cohens v. Virginia, 6 Wheat. 264. See Eevised Stats. U. S. \\ 
690 to 710. 

4 See, upon this subject, Curtis' Commentaries on the Jurisdiction^, 
etc., of the Courts of the United States. 



OF THE UNITED STATES. 353 

in question the validity of a statute or authority of any 
state, on the ground of its repugnancy to the constitution, 
treaties, or laws of the union, and the decision is in favor 
of it; or where any title, right, privilege or immunity is 
claimed under the constitution or any treaty or statute of, 
or commission or authority under, the United States, and 
the decision is against it. 1 

1 Act of Feb. 5, 1867, \ 2; 14 Stats, at Large, 385; Kev. Stat. U. S. 
\ 709. The words of the act are these : — 'A final judgment or decree in 
any suit in the highest court of a State, in which a decision in the suit 
could be had, where is drawn in question the validity of a treaty or 
statute of, or an authority exercised under, the United States, and the 
decision is against their validity; or where is drawn in question the 
validity of a statute of, or an authority exercised under, any State, on 
the ground of their being repugnant to the Constitution, treaties, or laws 
of the United States, and the decision is in favor of such their validity ; 
or where any title, right, privilege, or immunity is claimed under the 
Constitution, or any treaty or statute of, or commission held, or author- 
ity exercised under, the United States, and the decision is against the 
title, right, privilege, or immunity specially set up or claimed by either 
party under such Constitution, treaty, statute, commission, or authority, 
may be re-examined and reversed or affirmed in the Supreme Court of 
the United States, upon a writ of error, the citation being signed by the 
chief justice, or judge, or chancellor of the court rendering or passing 
the judgment or decree complained of, or by a justice of the Supreme 
Court of the United States, in the same manner, and under the same 
regulations, and the writ shall have the same effect as if the judgment 
or decrees complained of had been rendered or passed in a court of the 
United States ; and the proceeding upon the reversal shall also be the 
same, except that the Supreme Court may, at their discretion, proceed 
to a final decision of the same, and award execution or remand the same 
to an inferior court.' 

In 20 "Wallace, 592-593, the 25th section of the Judiciary Act of 1789, 
and the 2d section of the act of 1867, (technically repealing the former, 
but substantially re-enacting it), are 'juxtaposited verbatim in col- 
umns ; ' and on page 595 of the same report, we have the following 
analysis of the two. ' Thus : 

' 1st. By the old act, this court could not proceed to final judgment 
and award execution, except in cases where the cause " had been once 
remanded before." By the new act, this limitation is omitted, and the 
court is authorized in all cases at their discretion, to render judgment 
and award execution. 

'2d. By the old law the jurisdiction is vested in cases where is drawn 

1 in question the constmction of any clause of the Constitution, or treaty, 

or statute, or commission. In the new, we have the use of these other 

W 



354 POLITICAL AND CONSTITUTIONAL LAW 

279. Since 1789, the question of the jurisdiction of the Su- 

preme Court, in the class of cases mentioned, has been con- 
stantly before that court, and yet the question is hardly to 
be considered as finally determined and settled. In a 
very recent case, that of Murdock v. The City of Mem- 
phis, Mr. Justice Miller pronounced the opinion of the 
court, and therein said: — 'The twenty-fifth section of the 
act of 1 789 is technically repealed, and the second section 
of the act of 1867 has taken its place : the new law, em- 
bracing all that was intended to be preserved of the old, 
and omitting what was not so intended, became complete 
in itself and repealed all other law on the subject em- 
braced within it/ 1 And after a thorough examination of 
the questions presented, that able and learned judge, 
speaking for the court, concluded as follows : 

1 Finally, we hold the following propositions on this sub- 
ject as flowing from the statute as it now stands : 

< 1. That it is essential to the jurisdiction of this court 
over the judgment of a state court, that it shall appear 
that one of the questions mentioned in the act must have 
been raised, and presented to the state court. 

' 2. That it must have been decided by the state court, 
or that its decision was necessary to the judgment or de- 
cree rendered in the case. 

words, "or where any right, title, privilege, or immunity is claimed," 
under the Constitution, etc. 

' 3d. By the old law it was required that what is called " the federal 
question" must "appear on the face of the record." In the new, the 
words making this requisition are omitted. 

'4th. By the old law, "no other error could be assigned or regarded 
as ground of reversal than such as immediately related to the validity 
or construction of the Constitution, treaties, statutes, commissions, or 
authorities in dispute." In the new, the words putting this limitation 
on the jurisdiction, disappear, and make an argument plausible that 
Congress or the draughtsman of the act had meant to say that if a Fed- 
oral question once existed in the case, and this court so got jurisdiction 
of the case, then it was bound to go on and decide every question in it, 
though these questions were questions of local law, and such as, in num- 
berless cases, the court had decided that, under the old section and in 
consequence of the now omitted language at the close of it, could not be> 
passed on here.' 

1 20 Wall. 617. 



OF THE UNITED STATES. 355 

'3. That the decision must have been against the right 
claimed or asserted by plaintiff in error under the consti- 
tution, treaties, laws, or authority of the United States. 

<4. These things appearing, this court has jurisdiction, 
and must examine the judgment so far as to enable it to 
decide whether this claim of right was correctly adjudi- 
cated by the state court. 

<5. If it finds that it was rightly decided, the judgment 
must be affirmed. 

'6. If it was erroneously decided against plaintiff in 
error, then this court must farther inquire, whether there 
is any other matter or issue adjudged by the state court, 
which is sufficiently broad to maintain the judgment of 
that court, notwithstanding the error in deciding the issue 
raised by the federal question. If this is found to be the 
case, the judgment must be affirmed without inquiring into 
the soundness of the decision on such other matter or 
issue. 

1 7. But if it be found that the issue raised by the ques- 
tion of Federal law is of such controlling character that 
its correct decision is necessary to any final judgment in 
the case, or that there has been no decision by the state 
^court of any other matter or issue which is sufficient to 
maintain the judgment of that court without regard to the 
federal question, then this court will reverse the judgment 
•of the state court, and will either render such judgment 
here as the state court should have rendered, or remand 
the case to that court, as the circumstances of the case may 
require/ x 

x 20 Wall. 635, 636. 'It is only upon the existence of certain ques- 
tions in the case that this court can entertain jurisdiction at all. Nor is 
the mere existence of such a question in the case sufficient to give juris- 
diction — the question must have been decided in the state court. Nor 
Is it sufficient that such a question was raised and was decided. It must 
have been decided in a certain way, that is, against the right set up un- 
der the constitution, laws, treaties, or authority of the United States. 
The federal question may bave been erroneously decided. It may be 
quite apparent to this court that a wrong construction has been given to 
the federal law, but if the right claimed under it by plaintiff in error 
has been conceded to him, this court cannot entertain jurisdiction of the 
^case, so very careful is the statute, both of 1789 and of 1867, to narrow, 



356 POLITICAL AND CONSTITUTIONAL LAW 

\ 280. In- The inferior federal courts which congress has estab- 
ferior U. S. Kshed pursuant to the constitution, are principally the dis- 
courts. Xx\$i and circuit courts of the United States. And with a 

view to the establishment of these, congress has provided, 
that California, Connecticut, Delaware, Indiana, Iowa, 
Kansas, Kentucky, Louisiana, Maine, Maryland, Massa- 
chusetts, Minnesota, Nebraska, Nevada, New Hampshire, 
New Jersey, Oregon, Ehode Island, Vermont, and West 
Virginia, shall each of them constitute one judicial district; 1 
that Arkansas, Florida, G-eorgia, Illinois, Michigan, Mis- 
sissippi, Missouri, North Carolina, Ohio, Pennsylvania, 
South Carolina, Texas, Virginia, and Wisconsin, shall each 
be divided into two judicial districts; and that Alabama, 
New York, and Tennessee, shall each be divided into 
three. 2 

\ 280a. The court for each district, is held by a resident district 

U. S. district judge: whose original jurisdiction (concurrent with that of 
courts. ^ e i n f er ior state courts in very many cases) is now gen- 

erally extended to all crimes and offences cognizable under 
the authority of the United States and committed within 
his district (or districts) or upon the high seas, the punish- 
ment of which is not capital; 3 to all suits for penalties and 
forfeitures incurred under the laws of the United States; 
to all civil causes of admiralty and maritime jurisdiction; 
to all suits and proceedings in bankruptcy; to all suits for 
the redress of injuries to personal rights secured by the 
constitution and laws of the union; and to a great variety 

to limit, and define the jurisdiction which this court exercises over the 

judgments of the state courts The state courts are the 

appropriate tribunals, as this court has repeatedly held, for the decision 
of questions arising under their local law, whether statutory or other- 
wise. And it is not lightly to be presumed that congress acted upon a 
principle which implies a distrust of their integrity or of their ability to 
construe those laws correctly. ' Per Mr. Justice Miller, in Murdock v. 
City of Memphis, 20 Wall. 625, 626. 
iRev. Stats. U. S. g 531. 

2 Id. \\ 532 to 550. 

3 Id. \ 563. 



OF THE UNITED STATES. 357 

of judicial proceedings the mere enumeration of which 
would lead us beyond the scope of this work. 1 

The judicial districts of the United States are divided g 281. 
among nine circuits : the first circuit including the districts U. S. circuit 
of Rhode Island, Massachusetts, New Hampshire, and courts. 
Maine; the second, the districts of "Vermont, Connecticut, 
and New York; the third, the districts of Pennsylvania, 
New Jersey, and Delaware ; the fourth, the districts of 
Maryland, Virginia, West Virginia, North Carolina, and 
South Carolina ; the fifth, the districts of Georgia, Florida, 
Alabama, Mississippi, Louisiana, and Texas; the sixth, the 
districts of Ohio, Michigan, Kentucky, and Tennessee ; the 
seventh, the districts of Indiana, Illinois, and Wisconsin; 
the eighth, the districts of Nebraska, Minnesota, Iowa, 
Missouri, Kansas, and Arkansas; and the ninth, the dis- 
tricts of California, Oregon, and Nevada. 2 

The chief justice and associate justices of the Supreme 
Court are allotted among the several circuits by an order 
of the court. 3 For each several circuit, there is also a 
resident circuit judge, specially appointed as such, and 
having the same power and jurisdiction therein as the 
justice of the Supreme Court allotted to such circuit. 4 Cir- 
cuit courts are held by the justice of the Supreme Court 
allotted to the circuit, 5 or by the circuit judge of the cir- 
cuit, or by the district judge of the district sitting alone, 
or by any two of the said judges sitting together; 6 and 
cases may be heard and tried by each of the judges hold- 
ing a circuit court sitting apart by direction of the presid- 
ing justice or judge, who shall designate the business to be 
done by each. 7 

The original jurisdiction of the federal circuit courts . 2g2 

1 See Eev. Stats. U. S. ch. 3. 

2 Eev. Stats. TJ. S. \ 604. 
3 Id. I 608. 

* Id. §607. 

* Id. \\ 605 and 609. 

* Id. I 609. 

* Id. I 611. 






358 POLITICAL AND CONSTITUTIONAL LAW 

(concurrent in many cases with that of the state courts} 
extends to all suits of a civil nature at common law or in 
equity, where the matter in dispute, exclusive of costs, ex- 
ceeds the sum or value of five hundred dollars, and an 
alien is a party, or the suit is between a citizen of the 
state where it is brought and a citizen of another state :. 
provided, that no circuit court shall have cognizance of any 
suit to recover the contents of any promissory note or- 
other chose in action in favor of an assignee, unless a suit 
might have been prosecuted in such court to recover the 
said contents if no assignment had been made, except in 
cases of foreign bills of exchange. 1 These courts have 
also original jurisdiction of all suits in equity where the 
matter in dispute, exclusive of costs, exceeds the sum or 
value of five hundred dollars, and the United States are 
petitioners; of all suits at common law where the United 
States, or any officer thereof suing under the authority of 
any act of congress, are plaintiffs; of all suits at common 
law or in equity, arising under any act providing for reve- 
nue from imports or tonnage, except civil causes of admi- 
ralty and maritime jurisdiction, and seizures on land or on 
waters not within admiralty and maritime jurisdiction^, 
and except suits for penalties and forfeitures; of all causes 
arising under any law providing internal revenue, and of 
all causes arising under the postal laws ; of all suits and. 
proceedings for the enforcement of any penalties provided 
by laws regulating the carriage of passengers in merchant 
vessels; 2 and, we may say, generally, of all suits respect- 
ing the rights of citizens of the United States under the 
federal laws; and, concurrently with the district courts r 
of crimes and offences cognizable therein. 

These circuit courts moreover have an appellate juris- 
diction, from all final decrees of the district courts, in causes 
of equity or of admiralty and maritime jurisdiction, except 
prize causes, where the matter in dispute exceeds the sum 
or value of fifty dollars, exclusive of costs. 3 Final judg- 

1 Rev. Stats. U. S. \ 629. 

2 Id. \ 629. 

3 Id. §631. 



OF THE UNITED STATES. 359 

ments of the district courts in civil actions, where the 
matter in dispute exceeds the sum or value of fifty dollars, 
exclusive of costs, may also be re-examined, and reversed 
or affirmed, in the circuit courts holden in the same dis- 
tricts, upon writs of error. 1 But a district judge, sitting 
in a circuit court, may not give a vote in any case of ap- 
peal or error from his own decision, although he may 
assign the reasons for such decision : provided, that such a 
cause may, by consent of parties, be heard and disposed 
of by him when holding a circuit court sitting alone. And 
when he holds a circuit court with either of the other 
judges, the judgment or decree in such cases shall be ren- 
dered in conformity with the opinion of the presiding 
justice or judge. 2 

To these circuit courts, also, in many cases, causes may 
be removed from the state courts, for final determination. 3 



(3 e a) OF THE EXECUTIVE POWER: AND FIRST, 
(1 fc) OF THE EXECUTIVE POWERS OF THE STATES. 

The executive power, as formerly observed, has for its 2 283. Exec- 
object, the execution of the laws, as prescribed by the leg- utive power, 
islature, and expounded by the judiciary. 

In every state, by its constitution, the supreme executive 
power is vested in one person, called the governor (though 
formerly in some of the states, called the president); who 
is chosen by and from among the body of electors com- 
posing the state, for a term varying from one to four 
years, and by whom, with the advice and consent of the 
senate, the subordinate executive officers, other than such 
as are elective, are chosen and appointed. 

iRev. Stats. U. S. \ 633. 

2 Id. I 614. 

3 Id. \\ 639 to 647. In this connection, it affords me pleasure to refer 
the profession to the masterly essay by Hon. John F. Dillon, entitled 
'Removal of Causes from State Courts to Federal Courts' — just pub- 
lished, at St. Louis, by Messrs. G. I. Jones & Co. 



360 POLITICAL AND CONSTITUTIONAL LAW 

\ 284. Gov- The power and duties of the state governors, are also 
ernor. prescribed by the state constitutions. The nature of the 

office of a state governor, as well as his oath, requires him 
to bear true faith and allegiance to his state, 1 to support 
and defend the constitution thereof, and generally to see 
that the laws of the state are duly enforced. To that end 
he is made commander-in-chief of the military and naval 
forces of the state, 2 and also of the militia, except when 
in the actual service of the United States. 

2 285 "^ some of the state constitutions, the governor is 

clothed with all the powers of captain-general, comman- 
der-in-chief, and admiral, to be exercised either by him- 
self, or by any chief commander, or other officer or offi- 
cers, under his authority; 3 and according to Alexander 
Hamilton, ' it may well be a question, whether those con- 
stitutions, in particular, do not, in this instance, confer 
larger powers upon their respective governors, than could 
be claimed by a president of the United States/ 4 



(2/c) OF THE EXECUTIVE POWERS OF THE UNITED 

STATES. 

a 286. Mode The executive department of the federal government, 
of electing the next claims our attention. And here I shall briefly con- 
president, sider, first, the creation of the office, and the election, of 
president; secondly, the qualifications required for the 
office; and thirdly, the powers and duties of the office. 

(1.) First, then, concerning the creation of the office, and 
the election, of president; the constitution of the union 
contains the following provisions : 

'The executive power shall be vested in a president of 

1 See Const. Mass. Amend. Art. 6 ; New Hamp. tit. Oaths and Sub- 
scriptions, etc. 

2 See ante Nos. 63 and 64 of the General Form of State Constitution. 

3 See Const. Mass. Pt. n. Chap, n, Sec. I, Art. 7 ; Const. N. H. tit. 
Executive Power. 

* The Federalist, No. 69, p. 318. 



OP THE UNITED STATES. 361 

the United States of America. He shall hold his office 
during the term of four years, and, together with the vice- 
president, chosen for the same term, be elected as follows : 

'Each state shall appoint, in such manner as the legis- 
lature thereof may direct, a number of electors, equal to 
the whole number of senators and representatives to which 
the state may be entitled in congress: but no senator or 
representative, or person holding an office of trust or profit 
under the United States, shall be appointed an elector. 1 

< The electors shall meet in their respective states, and 
vote by ballot for president and vice-president, one of 
whom, at least, shall not be an inhabitant of the same state 
with themselves; they shall name in their ballots the per- 
son voted for as president, and in distinct ballots the per- 
son voted for as vice-president : and they shall make dis- 
tinct lists of all persons voted for as president, and of all 
persons voted for as vice-president, and of the number of 
votes for each, which lists they shall sign and certify, and 
transmit sealed to the seat of the government of the United 
States, directed to the president of the senate; the presi- 
dent of the senate shall, in the presence of the senate and 
house of representatives, open all the certificates, and the 
votes shall then be counted: the person having the greatest 
number of votes for president, shall be the president, if 
such number be a majority of the whole number of elect- 
ors appointed; and if no person have such a majority, then 
from the persons having the highest numbers, not exceed- 
ing three on the list of those voted for as president, the 
house of representatives shall choose immediately by bal- 
lot, the president. But in choosing the president, the votes 
shall be taken by states, the representation from each state 
having one vote; a quorum for this purpose shall consist 
of a member or members from two-thirds of the states, and 
a majority of all the states shall be necessary to a choice. 
And if the house of representatives shall not choose a 
president whenever the right of choice shall devolve upon 
them, before the fourth day of March next following, then 
the vice-president shall act as president, as in the case of 

1 Const. U. S. Art. n, \ 1. 



362 POLITICAL AND CONSTITUTIONAL LAW 

the death or other constitutional disability of the president, 

'The person having the greatest number of votes for 
vice-president, shall be the vice-president, if such number 
be a majority of the whole number of electors appointed; 
if no person have a majority, then from the two highest 
numbers on the list, the senate shall choose the vice-presi- 
dent; a quorum for the purpose shall consist of two-thirds 
of the whole number of senators, and a majority of the 
whole number shall be necessary to a choice. 1 

i Congress may determine the time of choosing the elec- 
tors, and the day on which they shall give their votes y 
which day shall be the same throughout the United States. 

1 In case of the removal of the president from office, or 
of his death, resignation, or inability to discharge the 
powers and duties of the said office, the same shall devolve 
on the vice-president, and congress may by law provide 
for the case of removal, death, resignation or inability,, 
both of the president and vice-president, declaring what 
officer shall then act as president, and such officer shall act 
accordingly, until the disability be removed, or a president 
shall be elected. 

1 The president shall, at stated times, receive for his ser- 
vices, a compensation, which shall neither be increased nor 
diminished during the period for which he shall have been 
elected, and he shall not receive within that period any 
other emolument from the United States or any of them/ 2 

^ 287. The foregoing are the provisions of the constitution con- 

cerning the creation of the office, and the election of pres- 
ident; and in most respects they seem too plain to admit 
of comment or explanation. It is worthy of notice, how- 
ever, that the president is elected, not by the votes of the 
people at large, but by as many bodies of presidential 
electors as there are states in the union: 'each state ap- 
pointing, in such manner as the legislature thereof may 
direct, a number of electors, equal to the whole number of 
senators and representatives to which the state may bo 

1 Const. U. S., Amendments, Art. xn. 

2 Id. Art. u, I 1. 



OF THE UNITED STATES. 363 

entitled in congress/ The presidential electors represent- 
ing a state, may vary in number from three to thirty ; and 
these may be appointed, in the absence of any provision 
of the state constitution to the contrary, without any refer- 
ence to a popular vote. The framers of the federal con- 
stitution were not unmindful of the possible dangers of 
popular elections involving the people of a great continent 
in the most exciting contests. They deemed it ' peculiarly 
desirable to afford as little opportunity as possible to tu- 
mult and disorder. This evil was not least to be dreaded 
in the election of a magistrate who was to have so import- 
ant an agency in the administration of the government. 
But the precautions so happily concerted in the system 
under consideration,' seemed to them to ''promise an effect- 
ual security against this mischief/ They thought that 
'the choice of several, to form an intermediate body of 
electors, much less apt to convulse the community with 
extraordinary or violent movements, than the choice of 
one, who was himself to be the final object of the public 
wishes/ And that, 'as the electors, chosen in each state,, 
were to assemble and vote in the state in which they were 
chosen, their detached and divided situation would expose 
them much less to heats and ferments that might be com- 
municated from them to the people, than if they were all 
to be convened at one time, in one place/ 1 

(2.) Secondly, as to the qualifications required for the „ ft Q 
office of president. l ~No person, except a natural born citizen, ifi cat i on s for 
or a citizen of the United States at the time of the adopt- president. 
ion of the constitution, shall be eligible to the office of 
president [or vice-president] ) neither shall any person be 
eligible to that office, who shall not have attained to the 
age of thirty-five years, and been fourteen years a resident 
within the United States/ 2 

1 See The Federalist, No. 68. 

3 It will be observed that citizenship of the United States, was not for 
the first time established by the present federal constitution ; it was 
originally a result of the old articles of confederation ; and under those 
articles, therefore, but not under the present constitution, it was possi- 
ble that the first president of the United States should have been chosen 



364 POLITICAL AND CONSTITUTIONAL LAW 

' Before he enter on the execution of his office, he shall 
take the following oath or affirmation : 

1 I do solemnly swear (or affirm) that I will faithfully 
execute the office of president of the United States, and 
will, to the best of my ability, preserve, protect and de- 
fend the constitution of the United States.' 1 

a 289. Pow- (**•) thirdly and lastly, concerning the powers and du- 
•ers of presi- ties of the president. The clauses of the constitution re- 
cent, lating to this head, are the following : — 

'The president shall be commander-in-chief of the 
army and navy of the United States, and of the militia of 
the several states, when called into the actual service of 
the United States ; he may require the opinion, in writing, 
of the principal officer in each of the executive depart- 
ments, upon any subject relating to the duties of their re- 
spective offices ; and he shall have power to grant reprieves 
and pardons for offences against the United States, except 
in cases of impeachment. 

'He shall have power, by and with the advice and con- 
sent of the senate, to make treaties, provided two-thirds 
of the senators present concur; and he shall nominate, 
and by and with the advice and consent of the senate, 
shall appoint, ambassadors, other public ministers, and 
consuls, judges of the Supreme Court, and all other officers 
of the United States whose appointments are not herein 
otherwise provided for, and which shall be established by 
law ) but the congress may by law vest the appointment 
of such inferior officers, as they think proper, in the pres- 
ident alone, in the courts of law, or in the heads of de- 
partments. 

'The president shall have power to fill up all vacancies 
that may happen during the recess of the senate, by grant- 

from among many 'natural-born citizens' of the United States which had 
'attained to the age of thirty -five years before the first presidential 
election. See \ 162, ante, where I have referred to the wonderful (and 
seemingly original) discovery of a late writer on constitutional law, 
that, by the old articles of confederation, ' there is no status of United 
States citizenship created or recognized.' 
1 Const. U. S. Art. n, \ 1. 



OF THE UNITED STATES. 365 

ing commissions which shall expire at the end of the next 
session. 

* He shall from time to time give to the congress infor- 
mation of the state of the union, and recommend to their 
consideration such measures as he shall judge necessary 
and expedient; he may, on extraordinary occasions, con- 
vene both houses, or either of them, and in case of dis- 
agreement between them, with respect to the time of ad- 
journment, he may adjourn them to such time as he shall 
think proper; he shall receive ambassadors and other 
public ministers ; he shall take care that the laws be faith- 
fully executed, and shall commission all the officers of the 
United States/ x 

1 Every bill which shall have passed the house of rep- 
resentatives and the senate, shall, before it become a law, 
be presented to the president of the United States ; if he 
approve, he shall sign it; but if not, he shall return it, 
with his objections, to that house in which it shall have 
orginated, who shall enter the objections at large on their 
journal, and proceed to reconsider it/ 2 

' The president shall be commander-in-chief of the army 
and navy of the United States, and of the militia of the p res ^ ent as 
several states when called into the actual service of the commander- 
United States/ in-chief. 

1 The propriety of this provision/ in the words of The 
Federalist, 'is so evident, and it is, at the same time, so 
consonant to the precedents of the state constitutions in 
general, that little needs to be said to explain or enforce 
it. Even those of them which have, in other respects, 
coupled the chief magistrate with a council, have for the 
most part concentrated the military authority in him alone. 
Of all the cares or concerns of government, the direction 
of war most peculiarly demands those qualities which dis- 
tinguish the exercise of power by a single hand. The 

1 Const. XL S. Art. n, gg 2, 3. 

1 Id. Art. i, \ 7. The same also as to ' every order, resolution, or 
vote to which the concurrence of the senate and house of representa- 
tives may be necessary (except on a question of adjournment.)' Id. 
See \ 297, post. 



366 POLITICAL AND CONSTITUTIONAL LAW 

direction of war implies the direction of the common 
strength j and the power of directing and employing the 
common strength, forms an usual and essential part in the 
definition of the executive authority.' 1 

\ 291. Pow- * The president shall be commander-in-chief of the militia 
«er as to state f th e several states, when called into the actual service of 
the United States/ For the word called, we are here, I 
apprehend, to read mustered. The constitution, as we have 
formerly seen, gives to congress power ' To provide for 
calling forth the militia to execute the laws of the union, 
suppress insurrections, and repel invasions/ 2 In pursuance 
of this power, congress, by act of 28th February, 1795, 
vested authority in the president to call forth the militia, 
for the purposes mentioned; and under this and other acts, 
he has the exclusive power to judge when any of the exi- 
gencies arises, in which his authority to make such call 
should be exerted. 3 But though the president make a call 
for the militia of a state, which it seems he may do by 
directing his orders to the governor of the state, the 
militia still remain completely subject to state jurisdiction, 
till actually mustered into the service of the United States : 4 
until after such muster, they are subject to the order of the 
governor of the state, as their commander-in-chief, by 
virtue of the state constitution. 5 It may, therefore, be a 
question whether, in making the neglect or refusal of a 
state officer, to obey the orders of the president, an oifence 
against the United States, punishable by a United States 
court martial, congress has or has not transcended the 
limits of the constitution. That ' the people/ in ratifying 
the federal constitution, designed to place themselves, as 
state militia, or in any other character, so completely at 

1 The Federalist, No. 74, p. 341. 

2 Const. U. S., Art. i, § 8. Ante, § 239. 

3 Martin v. Mott, 12 Wheat. 19. The governments of Connecticut 
and Massachusetts, however, prior to this decision, held to the contrary 
doctrine. See 1 Kent's Com. * 262-265. 

4 Houston v. Moore, 5 Wheat. 1. Ante, \ 240. As to the power of 
•congress in this particular, see ante, \\ 239-242. 

5 See General Form of State Constitution, ante, p. 93. 



OF THE UNITED STATES. 367 

the will of the president, is hardly possible. That such was 
their intention, is clearly disproved by their state consti- 
tutions, which have always made the chief executives of 
the states the commanders-in-chief of the militia of the 
states, as well as denied by several of the amendments to 
the federal constitution. Long, I trust, shall we look in 
vain for any delegation of power, in our constitutions, by 
which the lives, liberties, and fortunes of our people, are 
placed at the mercy of courts martial, or made the sport 
of military chiefs and military commissions. 

' The president may require the opinion, in writing, of 9 292 
the principal officer in each of the executive departments, 
upon any subject relating to the duties of their respective 
offices/ x 

Concerning this clause, we shall only observe, in the 
language of Alexander Hamilton, that it is <a mere re- 
dundancy in the plan; as the right for which it provides 
would result of itself from the office/ 2 

< The president shall have power to grant reprieves and g 293. Par- 
pardons for offences against the United States, except in doning power 
■cases of impeachment/ 3 of president. 

The pardoning power, by which the regular course of 
the law is suspended in particular cases, is usually vested 
in the chief executive; though partaking, perhaps, not 
only of the legislative, but also of the judicial, functions. 
The policy of this disposition of the power is easily de- 
fended. ' Humanity and good policy conspire to dictate, 
that the benign prerogative of pardoning should be as 
little as possible fettered or embarrassed. The criminal 
code of every country partakes so much of necessary 
severity, that without an easy access to exceptions in favor 
of unfortunate guilt, justice would wear a countenance too 
sanguinary and cruel. As the sense of responsibility is 
always strongest, in proportion as it is undivided, it may 
be inferred, that a single man would be most ready to at- 

1 Const. U. S. Art. n, \ 2. 

2 The Federalist, No. 74, p. 341. 

3 Const. U. S. Art. 11, \ 2. 



368 POLITICAL AND CONSTITUTIONAL LAW 

tend to the force of those motives which might plead for 
a mitigation of the rigor of the law, and be least apt to 
yield to considerations which were calculated to shelter a 
fit object of its vengeance. The reflection that the fate of 
a fellow creature depended on his sole fiat, would natur- 
ally inspire scrupulousness and caution ; the dread of be- 
ing accused of weakness or connivance would beget equal 
circumspection, though of a different kind. On the other 
hand, as men generally derive confidence from their num- 
ber, they might often encourage each other in an act of 
obduracy, and might be less sensible to the apprehension 
of censure for an injudicious or affected clemency. On 
these accounts, one man appears to be a more eligible dis- 
penser of the mercy of government, than a body of men/ 1 

I 294. Treaty ' The president shall have power, by and with the advice 
making pow- and consent of the senate, to make treaties, provided 
er - two-thirds of the senators present concur/ 2 The treaty- 

making power, is, unquestionably, in all governments, a 
power of great magnitude and importance, and possibly 
liable, like all other powers of a political nature, to per- 
version and abuse. It must, however, reside somewhere ; 
and though of a legislative character, no suggestion has 
yet been made, concerning its disposition, which proposes 
a wiser or better plan than that of the framers of the con- 
stitution. 'The security essentially intended against cor- 
ruption and treachery in the formation of treaties, is to be 
sought for in the numbers and characters of those who are 
to make them. The joint agency of the chief executive 
magistrate of the union, and of two-thirds of the members 
of a body selected by the collective wisdom of the legisla- 
tures of the several states, is designed to be the pledge for 
the fidelity of the federal councils in this particular.' 3 
It was, as we have seen, the plan of the framers of the 

1 The Federalist, No. 74. Hamilton. As to whether there should 
not have been an exception also of cases of treason, see the same num- 
ber. 

2 Const. U. S. Art. n, \ 2. 

3 The Federalist, No. 66. On this power, see also Nos. 64 and 75. 



OP THE UNITED STATES. 369 

federal constitution, to vest in the federal government all 
those powers of a general nature, the exercise of which 
must equally affect the interests of every member of the 
union ; and, at the same time, to leave each state in full 
possession of all such powers as related to its internal gov- 
ernment. 1 By no other j>lan, indeed, was a union of states 
as such a possible thing. 2 The exercise of the treaty- 
making power, was therefore vested in the government of 
the union, and no state could afterward enter into any 
treaty, alliance, confederation, agreement or compact, with 
another state, or with a foreign power. 3 But the interests 
of the states were kept in view, and fully secured, by vest- 
ing the power in the president and senate, who are, by the 
constitution itself, made the immediate representatives of 
the states, chosen by the states themselves, and not by the 
people at large. 

The power of the president, in this particular, must of 
course exceed the power of any of the state executives. 
'But this arises naturally from the exclusive possession by 
the union of that part of the sovereign power which relates 
to treaties. If the confederacy were to be dissolved, it 
would become a question, whether the executives of the 
several states were not solely invested with that delicate 
and important prerogative/ 4 

1 The president shall nominate, and by and with the advice 
and consent of the senate, shall appoint ambassadors, other pointing pc 
public ministers and consuls, judges of the Supreme Court, er of presi- 
and all other officers of the United States whose appoint- dent. 
ments are not otherwise provided for in the constitution, 
and which shall be established by law ; but congress may 
by law vest the appointment of such inferior officers, as 
they think proper, in the president alone, in the courts of 
laAV, or in the heads of departments. The president shall 
have power to fill up all vacancies that may happen during 
the recess of the senate, by granting commissions which 
shall expire at the end of their next session/ 5 

1 See ante, \ 112. * Ante, \ 16. s Const. U. S. Art. I, \ 10. 

* The Federalist, No. 69, p. 319. Hamilton. 
5 Const. U. S. Art. n, \ 2. 

X 



295 Ap- 



370 POLITICAL AND CONSTITUTIONAL LAW 

All officers of the federal government, whose appoint- 
ments are not provided for by the constitution itself, or 
vested by act of congress in the courts of law or the heads 
of departments, are to be nominated, and with the advice 
and consent of the senate, appointed, by the president. An 
almost unlimited number of appointments to office are thus 
placed at the disposal of the president, by which he may, 
if he will, attach to his interests as many influential and 
efficient adherents, and, under circumstances favorable to 
unlimited power, thus make himself master of the fortunes 
of millions. 

There can of course be no exertion of choice on the part 
of the senate. They may defeat one choice of the execu- 
tive, and oblige him to make another; but they cannot 
themselves choose — they can only ratify or reject the choice 
he may have made. They may even entertain a prefer- 
ence for some other person, at the very moment they are 
assenting to the one proposed ; because there may be no 
positive ground of opposition to him ; and they cannot be 
sure, if they withhold their assent, that the subsequent 
nomination will fall upon their favorite, or upon any other 
person in their estimation more meritorious than the one 
rejected. Thus it can hardly happen, that the majority of 
the senate will feel any other complacency towards the 
object of an appointment, than such as the appearances of 
merit may inspire, and proofs of the want of it destroy. 1 
Our foreign as well as our home relations and policy, are 
thus to be shaped by the president. 

The power of appointment, — the most dangerous of all 
powers, in the hands of a single ambitious executive, — 
must of course reside somewhere. Perhaps, however, the 
clangers to be apprehended from the abuse of so great a 
power,, especially in times peculiarly favorable to imperial 
rule, might have been greatly diminished, if not wholly 
avoided, by vesting the power completely in the senate, 
so far as it relates to the appointment of other than dis- 

1 The Federalist, No. 66. This appointing power of the president is 
•defended by The Federalist, weakly however, in Nos. 76 and 77. 



OF THE UNITED STATES. 371 

trict officers, and in the people of each particular district, 
so far as it concerns the choice of district officers. 1 

' The president shall, from time to time, give to congress \ 2%. Other 
information of the state of the Union, and recommend to powers, 
their consideration such measures as he shall judge neces- 
sary and expedient ; he may, on extraordinary occasions, 
convene both houses, or either of them, and in case of dis- 
agreement between them with respect to the time of ad- 
journment, he may adjourn them to such time as he shall 
think proper; he shall receive ambassadors and other pub- 
lic ministers; he shall take care that the laws be faithfully 
•executed, and shall commission all the officers of the United 
States/ 2 

With the exception of the veto power, these are the re- 
maining powers of the president; and these are so plainly 
expressed that they speak for themselves. 

The veto power, as it is termed, is conferred by the fol- * 2 97 Pres- 
lowing clause of the constitution: — 'Every bill which id ent's veto, 
shall have passed the house of representatives and the 
senate, shall, before it become a law, be presented to the 
president of the United States ; if he approve, he shall 
sign it, but if not, he shall return it, with his objections, to 
that house in which it shall have originated, who shall 
enter the objections at large on their journal, and proceed 
to re-consider it. If after such re-consideration, two-thirds 
of that house shall agree to pass the bill, it shall be sent, 
together with the objections, to the other house, by which 
it shall likewise be re-considered, and if approved by two- 
thirds of that house, it shall become a law. But in all 
such cases the votes of both houses shall be determined 
by yeas and nays, and the names of the persons voting for 

1 Nothing shows so much the akti-republican spirit of the times, 
as the fact alone that the grand army of tax assessors and collectors, 
created by congressional legislation, have not been made elective by the 
people of their respective districts. See The Federalist, No. 36, p. 157 
el seq. Even though to have made them so elective, might have required 
a change of the constitution, that could have been no objection with a 
party ready to change it on every occasion to suit their partisan views. 

2 Const. U. S. Art. in, S3. 



372 POLITICAL AND CONSTITUTIONAL LAW 

and against the bill shall be entered on the journal of each 
house respectively. If any bill shall not be returned by 
the president within ten days (Sundays excepted) after it 
shall have been presented to him, the same shall be a law, 
in like manner as if he had signed it, unless the congress 
by their adjournment prevent its return, in which case it 
shall not be a law. Every order, resolution, or vote to 
which the concurrence of the senate and house of repre- 
sentatives may be necessary (except on a question of ad- 
journment) shall be presented to the president of the 
United States ; and before the same shall take effect, shall 
be approved by him, or being disapproved by him, shall 
be re-passed by two-thirds of the senate and house of rep- 
resentatives, according to the rules and limitations pre- 
scribed in the case of a bill.' 1 

\ 298. It will be observed, that the president has not an abso- 

Nature and lute negative concerning congressional legislation ; he can 
objects of this only require that a bill be re-passed by two-thirds of both 
power. houses, before it shall have the effect of a law. 

'The propensity of the legislative department to intrude 
upon the rights, and to absorb the powers, of the other 
departments, has been already more than once suggested; 
the insufficiency of a mere parchment delineation of the 
boundaries of each, has also been remarked upon; and the 
necessity of furnishing each with constitutional arms for 
its own defence, has been inferred and proved. From 
these clear and indubitable principles, results the propriety 
of a negative, either absolute or qualified, in the executive, 
upon the acts of the legislative branches. Without the 
one or the other, the former would be absolutely unable to 
defend himself against the depredations of the latter. He 
might gradually be stripped of his authorities by succes- 
sive resolutions, or annihilated by a single vote. And in 
the one mode or the other, the legislative and executive 
powers might speedily come to be blended in the same 

1 Const. U. S. Art. I, \ 7. The Consitution of Massachusetts (Pt. n, 
ch. I, \ i, Art. 2.) seems to have furnished the original of this section. 
See The Federalist, No. 69,pp. 316, 317. 



OF THE UNITED STATES. 373 

hands. If even no propensity had ever discovered itself 
in the legislative body, to invade the rights of the execu- 
tive, the rules of just reasoning and theoretic propriety 
would of themselves teach us, that the one ought not to 
be left at the mercy of the other, but ought to possess a 
constitutional and effectual power of self-defence. 

1 But the power in question has a further use. It not 
only serves as a shield to the executive, but it furnishes an 
additional security against the enaction of improper laws. 
It establishes a salutary check upon the legislative body, 
calculated to guard the community against the effects of 
faction, precipitancy, or of any impulse unfriendly to the 
public good, which may happen to influence a majority of 
that body. The propriety of a negative has, upon some 
occasions, been combatted by an observation, that it was 
not to be presumed a single man would possess more virtue 
and wisdom than a number of men ; and that unless this 
presumption should be entertained, it would be improper 
to give the executive magistrate any species of control 
over the legislative body. But this observation, when 
examined, will appear rather specious than solid. The 
propriety of the thing does not turn upon the supposition 
of superior wisdom or virtue in the executive ; but upon 
the supposition that the legislative will not be infallible ; 
that the love of power may sometimes betray it into a dis- 
position to encroach upon the rights of the other members 
of the government; that a spirit of faction may sometimes 
pervert its deliberations; that impressions of the moment 
may sometimes hurry it into measures which itself, on 
mature reflection, would condemn/ 1 

i The primary inducement to conferring the power in 
question upon the executive is, to enable him to defend 
himself: the secondary is to increase the chances in favor 
of the community against the passing of bad laws, through 
haste, inadvertence or design. The oftener a measure is 
brought under examination, the greater the diversity in 
the situations of those who are to examine it, the less 

1 The Federalist, No. 73. — Hamilton. 



299. 



374 POLITICAL AND CONSTITUTIONAL LAW 

must be the danger of those errors which flow from want 
of due deliberation, or those mis-steps which proceed from 
the contagion of some common passion or interest. It is- 
far less probable that culpable views of any kind should 
infect all the parts of the government at the same moment 
and in relation to the same object, than that they should 
by terms govern and mislead every one of them. 

'It may perhaps be said that the power of preventing- 
bad laws includes that of preventing good ones ; and may 
be used to the one purpose as well as the other. But this 
objection will have little weight with those who can prop- 
erly estimate the mischiefs of that inconstancy and muta- 
bility in the laws, which form the greatest blemish in the 
character and genius of our governments. They will con- 
sider every institution, calculated to restrain the excess of 
law-making and to keep things in the same state in which 
they may happen to be at any given period, as much more 
likely to do good than harm; because it is favorable to 
greater stability in the system of legislation. The injury 
which may possibly be done by defeating a few good laws,, 
will be amply compensated by the advantage of preventing, 
a number of bad ones. 

'Nor is this all. The superior weight and influence of 
the legislative body in a free government, and the hazard 
to the executive in a trial of strength with that body r 
afford a satisfactory security that the negative would gen- 
erally be employed with great caution j and that in it& 
exercise, there would oftener be room for a charge of 
timidity than of rashness. In the case for which it is 
chiefly designed, that of an immediate attack upon the 
constitutional rights of the executive, or in a case in which 
the public good was evidently and palpably sacrificed, a 
man of tolerable firmness would avail himself of his con- 
stitutional means of defence, and would listen to the admo- 
nitions of duty and responsibility. I speak now with an 
eye to a magistrate possessing only a common share of 
firmness. There are men, who, under any circumstances,, 
will have the courage to do their duty at every hazard/ x 

1 Id. pp. 338-339 : This subject is fully examined by Hamilton in 



OF THE UNITED STATES. 375 



(3 d) OF THE EIGHT OF POLITICAL DOMAIN. 

Having considered the sovereign rights of political ex- % 300. Emi- 
istence and of political sovereignty, and shown in whom uent domain 
those rights inhere, it remains to be seen in whom is of the states » 
vested the sovereign right of political domain ; whether 
in the states, or in the union of the states. 

The states are united, as we have seen, by a written con- 
stitution and a government founded therein, to which the 
people of each state, as a self-constituted, self organized, 
and self-governing political community or state, became a 
party by their own free act. l But that constitution con- 
tains no grant or delegation of power to the government 
of the United States, or to any branch or department 
thereof, affecting the sovereign proprietary right to the 
territory of the states. That right must threfore remain 
the right of the people of each state. 2 The Supreme Court 
of the United States, in its expositions of the federal con- 
stitution, has therefore uniformly held, that, from the time 
the people of any state resumed the powers of sovereignty, 
the prerogatives and regalities which before belonged to 
either the Crown or the Parliament of Great Britain, be- 
came immediately and rightfully vested in them, together 
with the absolute title to all the territory, and to all the 
navigable waters and the soils under them, within the 

his usual masterly manner. — See the number referred to, and also No. 
71, p. 329, where his argument is sufficiently strong to justify an absolute 
negative upon the legislative body. On the tendency to usurpation by 
the legislative power, see also No. 48, by Madison : and further, on the 
veto power, Id. No. 51, p. 240. 

1 ' The ratification of the Conventions of nine States shall be sufficient 
for the establishment of this Constitution between the States so ratifying 
the same.' Const. U. S. last clause. Seethe ordinances of these conven- 
tions, \\ 85 to 86, ante. * No political dreamer was ever wild enough to 
think of breaking down the lines which separate the States and of com- 
pounding the American people into one common mass. Of conse- 
quence, when they act, they act in their States. ..... From 

these Conventions, the Constitution derives its whole authority.' Chief 
Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316 ; 4 Pet Cond. 
Rep. 471. See p. 289, ante. 

2 Const. U. S. Amendments, Art. x. 



376 POLITICAL AND CONSTITUTIONAL LAW 

jurisdiction of their state ; and that they yet hold in right 
of their sovereignty, the absolute property in, and domin- 
ion over, all the territory within the bounds and limits of 
their state, with the right to dispose of the title to any 
part thereof, subject only to the rights of navigation, for 
the purposes of commerce, over the waters of the state. 1 

I 301. As formerly remarked, the title to the territories ac- 

quired since the Revolution, was originally vested in the 
United States ; in trust, nevertheless, for such of the peo- 
ple of the several states as should settle therein, form 
new states, and in the capacity of states, be admitted 
into the federal union. 2 And as each state legislature 
is generally empowered by its constitution, to make all 
laws at discretion, so long as they be not repugnant to 
that constitution, it follows of course, that the government 
of a state is practically clothed with all the rights of emi- 
nent domain, within the jurisdiction of the state, and may 
grant its lands to whom it pleases, and subject to any con- 
ditions it may choose to impose. ' That the legislature of 
a state, unless restrained by its own constitution, possesses 
the power of disposing of the unappropriated lands within 
its own limits, in such manner as its own judgment shall 
dictate,, is a proposition not to be controverted/ 3 

\ 302. Pub- By the federal constitution, congress has power to dis- 
hc lands of the p 0ge ^ an( j raa k- e a u ne edful rules and regulations respect- 
a es .^^ ^ e territory or other property belonging to the 
United States. 4 And it is generally understood that this 
power extends to the disposal of all public lands the title 
to which is held by the United States in trust for the peo- 
ple of the several states. For the disposal of those lands 
is unquestionably a matter of common and national con- 

1 Martin et al. v. Waddell, 16 Pet. 410, 416 ; Weber v. Harbor Com- 
missioners, Sup. Ct. U. S., Central Law Journal, Yol. i, No. 41, p. 513. 
See p. 87, ante, No, 38. 

2 "Weber v. Harbor Commissioners, sup. 

3 Marshall, Chief Justice, in Fletcher v. Peck, 6 Cranch, 87 ; 2 Pet. 
Cond. 317. 

* Const. U. S. Art. iv, \ 3, 2. 



Lusion. 



OP THE UNITED STATES. 377 

cern, which could not be subject to the jurisdiction of any 
one member of the union. 

It is no part of the design of this work, however, to 
treat of the law of eminent domain, or of the system of 
law respecting the public lands. The design was to show 
the foundation, nature and character, of our American sys- 
tem of government, and the present danger to which that 
system is exposed. 

We have now ascertained in whom the rights of politi- \ 303. Con- 
cal existence, political sovereignty, and political domain, cli 
are vested by our constitutional system : a system pro- 
ductive of an almost endless division, enumeration, and 
distribution of the powers of government, and one that 
might seem to invite the objection that sooner or later it 
must of itself engender confusion, and become unintelli- 
gible to all but those who make it their study and profes- 
sion. To this objection, however, it should be an all-suf- 
ficient answer, that in proportion as the laws of a people 
are few and simple, the powers of the government, and 
the rights of the citizen, must remain undefined, unfixed 
and uncertain, and in the same proportion, political and 
civil liberty and personal security, must be at an end. The 
inconveniences arising from different laws and regulations 
in different states upon the same subject-matters, have, 
without doubt, led many good people to wish for uniform 
laws upon all subjects : they seeming to forget that the 

POWER TO ENFORCE UNIFORMITY IN ALL THINGS, is in its very 

essence despotic and imperial, and destructive of all forms 
of self-government. May it be possible that our people 
are blinded to this truth ! Will they not see that uniform- 
ity is death to liberty ! The rule of my house is to be 
enforced as the rule of yours, and the rule of yours as the 
rule of mine; and because you live in the fog and must 
carry a lamp by day and by night, I must also carry a 
lamp, although I live in the blaze of the sun. This is not 
conformable to the laws of nature or the laws of the physi- 
cal world, l nor is it consistent with the fundamental princi- 

1 See g 9, pp. 5-6, ante. 



378 POLITICAL AND CONSTITUTIONAL LAW 

pies of our system of government. We have seen that 
our system ultimately rests on two principles, individual. 

SELF-GOVERNMENT, and COMMON CONSENT ; INDIVIDUALITY 

and co-operation. These principles are as natural and 
eternal as nature herself. But nature herself can be 
law for intelligent beings only in becoming the meaning 
and ideality of visible forms. Common consent, in like 
manner is a myth, unless expressed in words and definite 
propositions. Thus the common mind is the common sov- 
ereign only in the form of written constitutions. The 
common consent is therefore expressed in such constitu- 
tions ; and as it cannot be given without parties consent- 
ing, the status of the parties is fixed as that of absolute, 
sovereigns ; they being the source of power and the crown 
and support of the system. The system can, therefore,, 
exist and continue only on condition that those parties 
retain their sovereign power ; only so long as the principle 
and ultimate foundation of the system, that all power is 
inherent in the people of each state, remains secure and 
unshaken. 1 Hence the question, and the all-important 
question : Shall the basis and foundation of the system: 

BE CHANGED, AND THE SOVEREIGNTY OF THE PEOPLE BE SUR- 
RENDERED AS PROOF OF THEIR LOYALTY TO OUR IMPERIAL, 

court ! This is the question which the sovereign assem- 
blies of the people are soon to decide. 

Americans ! However divided by party lines, forget not 
your trust. 

You are the sovereigns of a mighty republic, founded in 
the wisdom and patriotism of your sires. Under Grod and 
your banner, humanity is self-redeemed and liberty is pro- 
claimed to all men. 

Shall your place, your power, and your right be usurped,, 
and the sceptre of your might be seized by a treacherous 
yet trusted hand ? Is treason at work and still unsus- 
pected and honored ? 

Consider, then, the ways of your trusted servants ; their 
perfidious violations of their oaths of fidelity to your 

1 The people of each state, in their state constitution, have always- 
assumed this to be the basis of our system. See pp. 80, 81, 289, ante. 



OP THE UNITED STATES. 37& 

sovereign will and organic law; their covert homage to 
the new pretender to the sovereignty of America, couched 
in the mystic form of i the right of citizens of the United 
States to vote;' their open denial of your right to determine 
and decree, by your own constitutions, who shall share in 
your sovereign deliberations and resolves; their collusive 
and wasteful appropriations of your public lands ; their 
profligate expenditure of millions extorted by unwise 
and ruinous taxation — destroying your manufactures, your 
commerce and trade, and beggaring one-half of your labor- 
ing populations ; their merciless oppression and spoliation 
of your once erring brethren, and their contentions for the 
spoils ; their efforts to mask their usurpations and misrule 
by arousing the demon and rekindling the fires of sectional 
hate ; their greed of gifts, their love of bribes, their schemes 
and leagues of corruption, and their hatred, contempt and 
resistance of reforms which you have decreed. 

It is for you to say 'Thus far and no farther/ The 

SCEPTRE IS STILL IN YOUR HANDS. 

It is for you to decide, whether your will, as expressed by 
yourselves in your sovereign enactments and constitutions 
for the glory and advancement of the cause of humanity 
and civilization, or the traitorous schemes of your servants 
for their own elevation and [self aggrandizement, shall be 
the paramount law of the land. 

The people of Eome, at a critical moment, recollected 
they were legislators, and there was an end of Tarquin. 1 

Americans ! Awake to your duty ! ' Eternal vigilance is- 
the price of liberty/ Hold the sceptre or all is lost. 

1 Montesquieu Spirit of Laws b. xi c. 12. 



INDEX 



References are made to Sections. 



Abandonment, of Sovereignty by ' The People,' 12. 
Absolute Rights, 16-17. 

Absolutism in Government (See Imperial Theory), 12. 
Allegiance, * 30, 55, 57, 60, 65, 180. 
Amendments, to Federal Constitution, 89. 
mode of making, 87-88. 
limit to the power of making, 87 a, 168. 
xrvth and xvth, 89 a, 164-172. 
partisan Amendments, 88, 193. 
Analysis of the different foundations of Government, 11-16. 
Anglo-American Colonies, Political History of, 22-44. 
Annapolis Convention, of 1786, 77. 
Articles of Confederation, 50-51. 

nature and defects of, 63. 
revision of, 76-82. 
Bankrupt Laws, power to enact, 160. 

Bill of Rights, See General Form of State Constitution, 75-76. 
Body Politic, what it is, 91. 

Boundary-line, of State and Federal Powers, 16, 112, 117, 125, 126, 141. 
Carolinas, The, Colonial Government of, 25, 26. 
Citlzens, what is meant hj, 155, 156. 

who are, 156, 165. 
Citlzenship, before the Confederation, 62, 157. 

of a State, 155-157. 

of the United States, 155-157. 

origin of, 161-162. 

' privileges and immunities ' of, 163-172. 

confers no right to vote, 163-172. 
Civil State, distinguished from the Political, 91, 155, 156. 
Colonies, History of the American, 22-44. 
Commerce, power to regulate, 142. 

Commissions, of Delegates to Constitutional Convention, 79. 
Common Consent, Government founded in, 11, 14, 15, 16, 150. 
Common Law, confirmation of by the States, 60, 61. 
Compact, original, of Society, 73-75. 



-382 INDEX. 

Congress, Colonial, of 1765, 35. 
of 1774, 37. 

of the Ke volution, 45-51. 
Congress of the United States, its Powers Limited, 148. 

under xvth Amendment, 171-172. 
Connecticut, Colonial Government of, 27. 

her Ordinance Ratifying the Constitution, 85 e. 
Constitution or the United States, Original Text of, 81-82. 
establishment of, 76-86 a. 
foundation of, 114. 
principle of, 111, 112, 119, 141, 153. 
Preamble to, 84, 108-110, 149. 

theories of, (See Federal, also Imperial Theory) 101-133. 
views of its Framers, 111-128. 
Constitution, of the English Parliament, 192. 
Constitutions, State, establishment of, 73, 74. 

fundamental Principle of, 93, 94, 134. 
General Form of, 75-76. 
nature of, 73-75. 
Constitutional Construction, Fundamental Eule of, 127, 141, 142. 
Constitutional Convention, of 1787, 78-83. 
Convention, the Annapolis, of 1786, 77. 

the General, of the States, of 1787, 78-82. 
Political Parties in, 80. 
Letter and Resolution of, 83. 
difficulties experienced in, 111-112. 
Declaration of Independence, by Continental Congress, 48-49. 

by Virginia, 43. 
Delaware, her Ordinance Ratifying the Constitution, 85 a. 
Democrats, The, 152-154. 
Domain, of States and United States, 300. 
Elections, Power of Congress concerning, 94 a. 
Electors, 91-98, 165, 166, 171-180. 

compose the States, as Bodies Politic, 91-93. 
hold the Paramount Sovereignty, 91-95. 
determine their own Status, 94-95. 
regulations of their Rights, Importance of, 95-99. 
sovereign Office and Duty of, 97. 
England, Constitution of, 192. 
Federal Constitution, (See Constitution) 81-82. 
Federal Powers, extent of, 117, 145. 

construction of, 112, 127, 141, 142. 
supremacy of, 143-144. 
Federal Theory, 111-128. 

how it defines a State, 19. 

contrasted with the Imperial Theory, 101. 

necessity of understanding the two Theories, 101. 



INDEX. 383 

Federal Theory, principles of the Federal Theory, 

111-113, 117, 119, 134, 135, 141. 
advantages of, 121. 
as to State Sovereignty, 134-138, 204. 
Federalist, The, 113, 129. 
Federative Principle, 14, 111, 112, 117, 119. 
Final Judgment, on questions of sovereignty, 16, note, 146-150. 
Georgia, Colonial Government of, 25. 

her Ordinance Ratifying the Constitution, 85 d. 
Government, Analysis of the Difierent Foundations of, 11-16. 
a means to a definite end, 38, 52. 
founded in Common Consent, 11-14. 
implied, 11, 12, 17. 
expressed — written, 11, 12. 
Sovereignty of, 12, 87 a, 87 b, 140. 

resumable by the People, 39, 40, 131, 150. 
United States, original commencement of, 86. 
Governments, Colonial, 24-27. 

Hamilton, Alexander, his Theory, 118-129, 130, 143. 
Imperial Theory (See Federal Theory), 101-111, 129, 130, 133. 
general statement of, 102, 129. 
grounds of, 108-111. 

idea of its original proponents, note to 110. 
its method and object, 103. 
advantages of, 106. 
how it defines a State, 19, 102. 
its refutation, 104-111, 133. 
its establishment, 169, 171 to 180. 
Implied Powers, of Government, 11, 12, 17. 

Inalienable Rights (See Self-government), note to 16, 94, 136, 150, 167, 169 
Inauguration oe U. S. Government, 86. 
Independence, Declaration of, by Continental Congress, 48-49. 

by Virginia, 43. 
iNDrviDUAL Liberty, how far alienable, note to 16. 
Jay, John, his Theory of the Constitution, note to 110, 129, 130, 140. 
Judgment, Final, on Political Questions, note to 16, 146-150. 
Judicial Powers, of IT. S. Supreme Court, 147. 
Jurisdiction, of Federal Government, 146-150. 
Legislative Power, of the People, 69-72. 

of Government, encroaching nature of, 146 a. 
Letter and Resolution of the Constitutional Convention, 83. 
Limitations, Constitutional, on Government, 173. 
on Powers of Congress, 126, 145. 
on Federal Government, 126, 145-150. 
on Power to amend Constitution, 87 a, 87 b, 164-172. 
Madison, James, his Theory of the Constitution, 113-118, 129, 130. 
Majorities, power of, limited, note to 16, 87 b, 136, 150. 



384 INDEX. 

Maryland, Colonial Government of, 26. 

her Ordinance Ratifying the Constitution, 85 g. 
Marshall, Chief Justice, his Theory of Constitution, 60, 131-132, 142, 204. 
Massachusetts, Colonial Government of, 25. 

action of, in 1768 and 1774, 41. 
her Ordinance Ratifying the Constitution, 85 /. 
Montesquieu, Spirit of Laws, 9, 111, 118, 119, 120. 
Nation, definitions or descriptions of a, 18 a, 20. 
distinguished from State, 20. 

the word formerly unknown to our Constitutions, 20. 
National Republicans, The, 154. 

National Theory (See Imperial Theory), 102, note to 110. 
Nationals, The, 80, 151-152. 
Naturalization Laws, power to enact, 157-161. 
Necessity, in Politics, 21. 

of Political Parties, 153-154. 
New England Colonies, Governments of, 25. 
New Hampshire, her Ordinance Ratifying the Constitution, 85 i. 
New Jersey, Colonial Government of, 25, 26. 
her action in 1774-1776, 42. 
her Ordinance Ratifying the Constitution, 85 c. 
New York, Colonial Government of, 25. 

her Ordinance Ratifying the Constitution, 85 I. 
North Carolina, her Ordinance Ratifying the Constitution, 85 m. 
Oath to support Constitution, 144. 
Officers, governmental, note to 132. 

Ordinances of the States, Ratifying the Constitution, 85-86. 
Original Compact of Society, 73-75. 
Parties, Political, 80, 151-154. 
origin of, 152. 
necessity of, 153-154. 
amendments by to Constitution, 88, 89 a. 
Parties, Sovereign, to the Constitution, 104, 105, 114, 117, 120, 128. 
People, The, (See Electors), who are, 84, 91-93. 

sovereignty of, inalienable, note to 16, 87 a, 87 b, 94, 169. 
determine their own Status, 94-95. 
Pennsylvania, Colonial Government of, 26. 

her Ordinance Ratifying the Constitution, 85 b. 
Political Existence, Right of, 7-69. 
Political Domain, 300. 

Political Parties, (See Parties), 80, 151-154. 
Political Revolution, Right of, 38, 52, 57, 58. 
Political Self-Preservation, 21. 
Political Sovereignty (See Sovereignty), 11-16. 

internal and external, 14, 15, 16, 136. 
as internal, inalienable, 87 a, 94, 136, 150, 169. 
as external=Common Consent, 11, 97, 126, 136. 
source and nature of, 11, 70, 71, 91, 92, 101. 



INDEX. 385 

Political State, what is a, 18-20, 91-92. 

various foundations of, 11-16. 
Pomeroy, John Norton, his Theory of the Constitution, 101-111, 138. 
Preamble to Constitution, 84, 108-110, 149. 

how it originally stood and why changed, 109-110. 
Press, Freedom of, 149. 
Ratifications of the Constitution, 84-86. 
Religion, free exercise of, 149. 
Republicans, The, 152-154. 

Reserved Rights of the States, 134, 140, 149, 150, 164-172. 
Resolution and Letter of the Constitutional Convention, 83. 
Resumption of Political Sovereignty "by the People, 39, 40, 52, 70. 
Revolution, American, of 1776, History of, 38-51. 
Revolution, Political, Right of, 38, 52, 57-61. 
Rhode Island, her Colonial Government, 27. 
her First Constitution, 27, 43. 
her Ordinance of Ratification, 85 n. 
Secession, Right of, 13. 

refuted, 137, 150. 
Self-government, Right of, defined, 11, 14, note to 16. 

ceded hy the People to their Rulers, 12, 171 to 180. 
reserved by each Individual, 13. 

by each State, 13. 
partly ceded and partly reserved, 14. 
as internal, inalienable, note to 16. 
as external, determined hj Common Consent, 16, 97. 
South Carolina, Colonial Government of, 25, 26. 

her Ordinance of Ratification, 85 h. 
Sovereign Parties to Constitution, 104, 105, 117, 120, 128. 
Sovereignty (See Self-Go vernment,) natural, 69, 70, 91, 101. 
political, source and nature of, 11, 70, 91, 101. 
of Government, 12, 87 a, 87 b, 92, 140. 

resumable by ' the People,' 3.9, 40, 52, 70, 150. 
of ' the People,' 11, 93-96, 140, 164, 172. ' 
of the States, 54-61, 91, 93-96, 133, 135, 150. 
as internal, inalienable, 94, 135, 136, 164-172. 
as external=Common Consent, 126, 127, 135, 137, 150. 
Stamp Act, of British Parliament, 33-34. 
State, Civil, distinguished from Political, 91, 156, 165. 
Political, definitions of, 18, 19. 

distinguished from Nation, 20. 
a means to a definite end, 38, 52 
the original warrant for its institution, 18. 
State Constitutions, establishment of, 43. 

General Form of, 75-76. 
nature of, 73-75. 
State-Rights Democrats, 153-154. 



386 INDEX. 

States, American, three kinds of, 156-165. 
States, The, Revolutionary action of, 40-45. 

necessary to our System, 121, 136, 172. 
reserved Rights of, 134-140, 168-172. 
State Sovereignty, 15, 54-61, 91, 93-96, 133, 134-135. 
how far alienable, 16, 135. 
ceded to U. S. in three cases only, 126, 127. 
how affected by xivth xvth Amendments, 164-172. 
Theory of, Federal, 134-138. 
Imperial, 102, 129. 
States United, The, Principle of, 14-16, 119, 141, 153. 

changed into One State, 168. 
Story, Justice, his Theory of the Constitution, 133. 
Suffrage, control of, the test of Sovereignty, 94, 95, 97, 168. 
universal or limited, 98. 
universal, the Ruin of Republics, 99. 
importance of regulations of, 95-99, 164-172. 
under xivth and xvth Amendments, 164-172. 
Supremacy Clause of the Constitution, 143-144. 
Treason, note to 65. 

Treaty or Peace with Great Britain, 51. 
United States, The, what, 19, 91. 

origin of the name, 50, note to 92. 
changed into One State, 168. 
Union, of the States, Principle of, 14-16, 111, 112, 119, 141, 153. 
articles of, original, 50-51. 
nature of, under the Art. of Confederation, 62-64. 

under Constitution, 101-155. 
may it be dissolved, 137. 
Usurpation, a new and easy method of, 107. 
danger of Legislative, 146 a. 
danger of Federal, 87 a, 87 b, 149. 
Virginia, Colonial Government of, 25. 

Declaration of Independence by, 43, 57, 58. 
her First Constitution, 57. 
her Ordinance Ratifying the Constitution, 85 k. 
Von Holst, Const, and Polit. Hist. U. S. note to 44, note to 102. 
Voters, 91-98, 165-166, 171-180. 
"Webster, Daniel, his Theory of our Governments, 133, 140. 




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